International Law

Chapter 1

THE NATURE OF INTERNATIONAL LAW

What is international law?

The traditional definition of international law is that it is a body of rules and

principles of action which are binding upon civilized states in their relations to one

another. States are the sole actors in this definition and, in the past, public

international law dealt almost exclusively with regulating the relations between

states in diplomatic matters and in the conduct of war. Today, sovereign states

remain as the principal subjects of international law; but they are now joined by

international organizations and even by individuals.' Thus, the Restatement (Third)

of Foreign Relations Law of the United States, which U.S. courts generally

consider as the most authoritative work on the subject, defines international law as

the law which deals “with the conduct of states and of international organizations

and with their relations inter se, as well as with some of their relations with

persons, whether natural or juridical.”2

Scope of international law.

The expansion of the scope of international law is nothing short of

revolutionary: New subject matters are being added, new subjects of international

law are being recognized, non-Western states are flooding into the community of

nations, political and social principles are changing, international organizations are

assuming new roles. This is being affected by various factors: rapid changes in

technology, the multiplication of the number of states with differing backgrounds

and achieving loose forms of cooperation, fear of war, rising demands for social

reform.

'Subjects of international law will be treated at greater length in Chapter 5.

§ 101. Hereinafter to be cited as RESTATEMENT.

2 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The topics that are covered by international law today include the regulation

of space expeditions, the division of the ocean floor, the protection of human rights,

the management of the international financial system, and the regulation of the

environment. Beyond the primary concern for the preservation of peace, it now

covers all the interests of contemporary international and even domestic life.

Is international law a law?

The question is sometimes asked whether international law is indeed law.

The basic challenge to international law as law is the claim that there can be no law

binding sovereign states. Moreover, there exists no international legislative body.

There is, of course, the General Assembly of the United Nations; but its resolutions

are generally not binding on anybody. There is no international executive. The

Security Council was intended to be that entity but it is often effectively hamstrung

by the veto power. Neither is there a central authority that can make judgments

binding on states. The International Court of Justice can bind states only when

states consent to be bound. Moreover, national officials tend to find justification for

whatever they do. Psychologically too, the allegiance to one’s sovereign state can

be very strong to the point of defying reason. When the chips are down, national

policy or interest is often preferred over international law. Enforcement of

international law is a real problem for several reasons. Frequently, there is no

assured procedure of identifying violation. Even the powers of the UN have

reference largely to lawbreaking that takes the form of an act of aggression or

threat to peace. But there are many violations of international law which are not of

this nature. Most of the time, all the UN can do is censure. For these reasons, it is

said that what is called international law is not law because it is commonly

disregarded.

These objections are based on an exaggerated notion of sovereignty as

embodying an individualist regime. This, however, is not the reality. The reality is

social interdependence and the predominance of the general interest. The reality is

that States are bound by many rules not promulgated by themselves. As Henkin

observes, “It is probably the case that almost all nations observe almost all

principles of international law and almost all of their obligations almost all of the

time.”3

3Henkin, HOW NATIONS BEHAVE 42.

CHAPTER 1

THE NATURE OF INTERNATIONAL LAW

Brierly adds: “The ultimate explanation of the binding force of all law is that man,

whether he is a single individual or whether he is associated with other men in a

state, is constrained, in so far as he is a reasonable being, to believe that order and

not chaos is the governing principle of the world in which he lives.”4

In the ultimate analysis, although the final enforcer is power, fundamentally,

there is a general respect for law because of the possible consequences of defiance

either to oneself or to the larger society.

Some theories about international law.

If international law is a law, what is its theoretical basis or what makes it a

law?

Command theory. In the view of John Austin, a renowned legal philosopher,

law consists of commands originating from a sovereign and backed up by threats of

sanction if disobeyed. In this view, international law is not law because it does not

come from a command of a sovereign. Neither treaties nor custom come from a

command of a sovereign. This theory, however, has generally been discredited. The

reality is that nations see international law not as commands but as principles for

free and orderly interaction.

Consensual theory. Under this theory, international law derives its binding

force from the consent of states. Treaties are an expression of consent. Likewise,

custom, as voluntary adherence to common practices, is seen as expression of

consent.5

In reality, however, there are many binding rules which do not derive

from consent.

Natural law theory. The natural law theory posits that law is derived by

reason from the nature of man International law is said to be an application of

natural reason to the nature of the state-person. Although the theory finds little

support now, much of customary law and what are regarded as generally accepted

principles of law are in fact an expression of what traditionally was called natural

law.

Some dissenters, however, see no objective basis for international law. They

see international law as a combination of politics, morality and self-interest hidden

under the smokescreen of legal language.

4Brierly , THE LAW OF NATIONS 55-56

treaties and custom will be treated in subsequent chapters.

4 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

In the ultimate analysis, however, the best answer is pragmatic.

Fundamentally, there is a general respect for law and also there is concern about the

consequences of defiance either to oneself or to the larger society. International law

is law because it is seen as such by states and other subjects of international law.

Public and private international law.

A distinction should be made between public international law, sometimes

referred to only as international law and which is the subject matter of this book,

and private international law, more commonly called conflict of laws. Public

international law governs the relationships between and among states and also their

relations with international organizations and individual persons. Private

international law is really domestic law which deals with cases where foreign law

intrudes in the domestic sphere where there are questions of the applicability of

foreign law or the role of foreign courts.

Brief historical development of international law.

From Ancient law to the League of Nations

What may be called ancient international law governed exchange of

diplomatic emissaries, peace treaties, etc., in the world of ancient Romans and even

earlier. There is evidence of treaties concluded between Jews and Romans, Syrians

and Spartans. The progressive rules of jus gentium, seen as a law “common to all

men,” became the law of the vast Roman empire.

Modem international law began with the birth of nation-states in the

Medieval Age. The governing principles were derived from Roman Law or Canon

Law which in turn drew heavily from natural law. Hugo Grotius, Dutch, is

considered father of modem international law. He authored De Jure Belli ac Pads.

What he called the “law of nations” was later given the name of “international law”

by the British philosopher Jeremy Bentham.

Before Grotius was Alberico Gentili, Oxford Professor of Roman Law (De

Jure Belli) and the Spanish theologian Francisco de Vitoria and the Jesuit

theologian Francisco Suarez; Samuel Pufendorf, German (De Jure Naturae

Gentium); Emmerich de Vattel, Swiss (The Law of Nations). These were generally

natural law people.

CHAPTER 1

THE NATURE OF INTERNATIONAL LAW

The positivist approach reinterpreted international law not on the basis of

concepts derived from reason but rather on the basis of what actually happened in

the conflict between states. With the emergence of the notion of sovereignty of

states came the view of law as commands originating from a sovereign and backed

up by threats of sanction if disobeyed. In this view, international law is not law

because it does not come from a command of a sovereign. Neither treaties nor

custom come from a command of a sovereign.

The following are some of the significant milestones in the development of

international law:

(a) The Peace of Westphalia, which ended the Thirty Years War

(1618-1648) and established a treaty based framework for peace cooperation.

(It was at this time that pacta sunt servanda arose.)

(b) Congress of Vienna (1815), which ended the Napoleonic Wars

and created a sophisticated system of multilateral political and economic

cooperation.

Treaty of Versailles which ended World War I.

In the aftermath of World War I, the victors decided to create an institution

designed to prevent the recurrence of world conflagration. Thus, the League of

Nations was bom. Its membership consisted of 43 states which included the five

British dominions of India, Canada, South Africa, Australia and New Zealand. The

United States did not join.

The League created the Permanent Court of International Justice.

From the end of World War II to the end of the Cold War

The League of Nations failed to prevent World War II. Thus, the formulation

of a new avenue for peace became the preoccupation of the victors. Hence was

founded the United Nations in 1945. This marked the shift of power away from

Europe and the beginning of a truly universal institution. The universalization was

advanced by decolonization which resulted in the expansion of the membership of

the United Nations. New states, carrying a legacy of bitterness against colonial

powers, became members of the UN.

6 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

It was during this period that three major groupings of states arose.

The Western states, although they were not all completely of one mind,

formed one group. Some remained satisfied with the status quo while others were

more open to Third World demands and supported social and legal changes. As to

international legislation, however, they insisted on two points. First, legal

provisions miust'be clear and precise. Second, any substantive rule must be

accompanied by an implementation mechanism that can spot and correct

violations.

Another grouping consisted of the socialist states led by the Soviet Union.

They formed the “socialist camp.” They sought to avert Western intrusion into

domestic affairs even as they sought relatively good relations with the West for the

sake of economic and commercial interchange. They also sought to convert

developing nations to their ideology.

The third group, the developing countries, formed the overwhelming

majority. The group consisted mainly of former colonies suffering from

underdevelopment together with newly industrializing countries such as the

Philippines, Malaysia, Thailand, Singapore, and South Korea who had earned their

independence through armed or political struggle while remaining under the

influence of Western or socialist ideas.

This was the Cold War period which succeeded in maintaining peace

through the balancing of the two super powers, the United States and its allies on

the one hand and the Soviet Union.

The end of the Cold War

The dissolution of the Soviet Union resulted in the end of the Cold War with

the re-emergence of international relations based on multiple sources of power and

not mainly on ideology. Many of the Baltic states were restored to statehood.

Yugoslavia collapsed and fragmented. The newly bom Russian Federation did not

inherit the Soviet Union’s position as a superpower.

At present there is only one super power, the United States, politically and

ideologically leading the western states. The United States acts both as world

policeman (but in an obviously selective manner as dictated by its own interests)

and also as global mediator.

CHAPTER 1

THE NATURE OF INTERNATIONAL LAW

Meanwhile, socialist countries are no longer united with some of them

depending on the support of Western states.

For their part, the developing countries seem to have veered away from

ideological orientation and towards market orientation instead and towards fighting

poverty and backwardness.

As for the United Nations, it seems to have declined as an international

agency for the maintenance of peace.

Chapter 2

THE SOURCES OF INTERNATIONAL LAW

What sources are.

The task of ascertaining what the laws are in the domestic sphere is a

relatively simple matter. Domestic laws are found in statute books and in

collections of court decisions. It is an altogether different matter with international

law. In the absence of a centralized legislative, executive and judicial structure,

there is no single body able to legislate and there is no system of courts with

compulsive power to decide what the law is nor is there a centralized repository of

international law. Thus, there is the problem of finding out where the law is. This

problem is exacerbated by the anarchic nature of world affairs and the competing

sovereignties. Nevertheless international law exists and there are “sources” where,

with some effort, the law can be found.

Sources are often classified into formal sources and material sources.

Authors, however, differ in defining these concepts. Formal sources can refer to

the various processes by which rules come into existence. Thus, for instance,

legislation is a formal source of law. So are treaty making and judicial decision

making as well as the practice of states. Material sources, on the other hand, are

not concerned with how rules come into existence but rather with the substance and

content of the obligation. They identify what the obligations are. In this sense, state

practice, UN Resolutions, treaties, judicial decisions and the writings of jurists are

material sources in so far as they identify what the obligations are. They are also

sometimes referred to as “evidence” of international law.

The doctrine of sources lays down conditions for verifying and ascertaining

the existence of legal principles. The conditions are the observable manifestations

of the “wills” of States as revealed in the processes by which norms are formed —

that is, treaty and state prac8

CHAPTER 2

THE SOURCES OF INTERNATIONAL LAW

tice accepted as law. The process of verification is inductive and posi- tivistic. It is

the process of finding what laws the states themselves have created and what laws

they are willing to place themselves under. It is a manifestation of the fact that

international law is characterized by individualism.

It is interesting, however, that the most widely accepted statement of the

“sources” of international law, that is, Article 38(1) of the Statute of the

International Court of Justice, does not speak of sources. Rather, Article 38 is

primarily a directive to the Court on how it should resolve conflicts brought before

it. Article 38 says:

1. The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular,

establishing rules expressly recognized by contesting states;

b. international custom, as evidence of a general practice accepted

as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the

teachings of the most highly qualified publicists of the various nations, as

subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide ex

aequo et bono, if the parties agree thereto.1

Article 38 is a declaration by states that these are the laws under which they

are willing to be bound. Thus, another statement of sources is the Restatement

(Third) of Foreign Relations Law of the United States which says:

1. A rule of international law is one that has been accepted as such

by the international community of states

a) in the form of

customary law;

b) by international

agreement; or

'Article 59 says: “The decision of the Court has no binding force except between the parties and in

respect to that particular case.”

10 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

c) by derivation from general principles common to

the major legal systems of the world.

2. Customary international law results from a general and

consistent practice of states followed by them from a sense of legal

obligation.

3. International agreements create law for the states parties thereto

and may lead to the creation of customary international law which such

agreements are intended for adherence by states generally and are in fact

widely accepted.

4. General principles common to the major legal systems, even if

not incorporated or reflected in customary law or international agreements,

may be invoked as supplementary rules of international law where

appropriate.

Briefly, therefore, the “sources” of international law are custom, treaties and

other international agreements, generally recognized principles of law, judicial

decisions and teachings of highly qualified and recognized publicists. We shall

discuss these sources one by one.

Custom or customary law.

Custom or customary international law means “a general and consistent

practice of states followed by them from a sense of legal obligation.” (Restatement)

This statement contains the two basic elements of custom: the material factor, that

is, how states behave, and the psychological or subjective factor, that is, why they

behave the way they do.

The material factor: practice of states or usus

The initial factor for determining the existence of custom is the actual

behavior of states (usus). This includes several elements: duration, consistency, and

generality of the practice of states.

The required duration (diuturnitas) can be either short or long. An example

of customary law that is the result of long, almost immemorial, practice is the rule

affirmed in The Paquete Havana2

on the exemption of fishing vessels from capture

as prize of war.

175U.S. 677,687 (1900).

CHAPTER 2

THE SOURCES OF INTERNATIONAL LAW

We are then brought to the consideration of the question whether, upon the

facts appearing in these records, the fishing smacks were subject to capture by the

armed vessels of the United States during the recent war with Spain.

By an ancient usage among civilized nations, beginning centuries ago, and

gradually ripening into a rule of international law, coast fishing vessels, pursuing

their vocation of catching and bringing in fresh fish, have been recognized as

exempt, with their cargoes and crews, from capture as prize of war.

In the North Sea Continental Shelf Cases,3

however, the Court indicated that

a short duration, by itself, will not exclude the possibility of a practice maturing into

custom provided that other conditions are satisfied:

. . . Although the passage of only a short period of time is not

necessarily, or of itself, a bar to the formation of a new rule of

customary international law on the basis of what was purely a conventional rule, an indispensable requirement would be that within the

period in question, short though it might be, State practice, including

that of states whose interests are specially affected, should have been

both extensive and virtually uniform in the sense of the provision

invoked — and should moreover have occurred in such a way as to

show a general recognition that a rule of law or legal obligation is

involved.

Duration therefore is not the most important element. More important is the

consistency and the generality of the practice. The basic rule on consistency, that is,

continuity and repetition, was laid down in the Asylum Case (ICJ Reports 1950).

The facts in the case were as follows:

On October 3rd, 1948, a military rebellion broke out in Peru; it

was suppressed the same day. On the following day, a decree was

published charging a political party, the American People’s

Revolutionary Party, with having prepared and directed the rebellion.

The head of the Party, Victor Raul Haya de la Torre, was denounced as

being responsible. With other members of the party, he was prosecuted

on a charge of military rebellion....

[1%9] ICJ Rep.

12 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

On January 4th, 1949, the Colombian Ambassador in Lima

informed the Peruvian Government of the asylum granted to Haya de

la Torre, at the same time he asked that a safe-conduct be issued to

enable the refugee to leave the country. On January 14th, he further

stated that the refugee had been qualified as a political refugee. The

Peruvian Government disputed this qualification and refused to grant a

safe-conduct. A diplomatic correspondence ensued which terminated

in the signature, in Lima, on August 31st,

1949, of an Act by which the two Governments agreed to submit the

case to the International Court of Justice.

The decision of the ICJ was against Colombia:

Finally, as regards American international law, Colombia had

not proved the existence, either regionally or locally, of a constant and

uniform practice of unilateral qualification as a right of the State of

refuge and an obligation upon the territorial State. The facts submitted

to the Court disclosed too much contradiction and fluctuation to make

it possible to discern therein a usage peculiar to Latin America and

accepted as law.

It therefore followed that Colombia, as the State granting

asylum, was not competent to qualify the nature of the offence by a

unilateral and definitive decision binding on Peru.

Uniformity and generality of practice need not be complete, but it must be

substantial. In Nicaragua v. United States (ICJ Reports 1986), the Court said that

the practice need not be “in absolute conformity” with the purported customary

rule. It said:

In order to deduce the existence of customary rules, the Court

deems it sufficient that the conduct of states should, in general, be

consistent with such rules, and that instances of state conduct

inconsistent with a given rule should generally have been treated as

breaches of that rule, not as indications of the recognition of a new

rule.

Opinio juris

Once the existence of state practice has been established, it becomes

necessary to determine why states behave the way they do. Do states behave the

way they do because they consider it obligatory to behave thus or do they do it only

as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is

obligatory, is what makes

CHAPTER 2

THE SOURCES OF INTERNATIONAL LAW

practice an international rule. Without it, practice is not law. ... Even humanitarian

consideration by itself does not constitute opinio juris. As the Nicaragua case again

put it:

... [f]or a new customary rule to be formed, not only must the

acts concerned ‘amount to a settled practice,’ but they must be

accompanied by the opinio juris sive necessitatis. Either the States

taking such action or other States in a position to react to it, must have

behaved so that their conduct is “evidence of a belief that this practice

is rendered obligatory by the existence of a rule of law requiring it.”

The need for such a belief, i.e., the existence of a subjective element, is

implicit in the very notion of the opinio juris sive necessitatis.

It should be noted that it is also possible for customary law to develop which

will bind only several states, or even only two states. But the party claiming it must

prove that it is also binding on the other party. In the Asylum case, this was not

proved. But this was proved in the case of Right of Passage over Indian Territory

(ICJ Reports 1960) where the right of Portugal to pass through Indian territory was

recognized.

Dissenting states; subsequent contrary practice

Would dissenting states be bound by custom? Yes, unless they ha4

consistently objected to it while the custom was merely in the process of formation.

The authority that is usually used for this is the Anglo-Norwegian Fisheries* case

where the ICJ said that a coastline delimitation rule put forward by England “would

appear to be inapplicable as against Norway, in as much as she has always opposed

any attempt to apply it to the Norwegian coast.” Dissent, however, protects only the

dissenter and does not apply to other states. Moreover, a state joining the

international law system for the first time after a practice has become law is bound

by such practice.

It is also possible that after a practice has been accepted as law, contrary

practice might arise. What effect would such contrary practice have? In Fisheries

Jurisdiction Case (Merits)? the opinion was expressed that such contrary practice

can cast doubt on the alleged law. It noted “great uncertainty as to the existing

customary law on account of the conflicting and discordant practice of States.” It

concluded that

[1951]

[1974]

14 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

the uncertainty had “an unsettling effect on the crystallization of a still evolving

customary law on the subject.” ... It might be added that, over time, if the contrary

practice should gain general acceptance, it might instead become the law.

Evidence of state practice and opinio juris

Having said all of the above, what are the acceptable evidence of state

practice? Various forms of evidence may point to state practice. These can be

treaties, diplomatic correspondence, statements of national leaders and political

advisers, as well as the conduct of states. By themselves, however, they do not

constitute customary law unless characterized by opinio juris.

The existence of opinio juris is a matter of proof. The burden of proving its

existence falls on the state claiming it. In Nicaragua v. United States where one of

the issues was whether the prohibition of the use of force was customary law, the

ICJ said:

It considers that this opinio juris may be deduced from, inter

alia, the attitude of the Parties and of States towards certain General

Assembly resolutions, and particularly Resolution 2625 (XXV)

entitled “Declaration on Principles of International Law concerning

Friendly Relations and Co-operation among States in Accordance with

the Charter of the United Nations.” Consent to such resolutions is one

of the forms of expression of an opinio juris with regard to the

principle of non-use of force, regarded as a principle of customary

international law, independently of the provisions, especially those of

an institutional kind, to which it is subject on the treaty-law plane of

the Charter.

“Instant custom”

Is there such a thing as “instant custom?” Quite obviously, what is referred to

as “instant custom” is not the product of constant and prolonged practice. Rather it

comes about as a spontaneous activity of a great number of states supporting a

specific line of action. In the after- math of the attack on the Word Trade Center in

New York, a coalition of forces arose in a matter of months supportive of the action

taken by the United States against Osama Bin Laden. At least one writer4

has sug

6Antonio Cassese, TERRORISM IS ALSO DISRUPTING SOME CRUCIAL LEGAL CATEGORIES OF INTERNATIONAL LAW, 12 Eur. J. Int’l l, No. 5.

CHAPTER 2

THE SOURCES OF INTERNATIONAL LAW

gested that this united action may have given birth to instant customary law

classifying the attack as an armed attack under Article 51 of the UN Charter

justifying collective self-defense. What was peculiar about this collective action

was that the object of defense was not an attack from a state but from a non-state

organization.

Usus and opinio juris in Humanitarian Law: The Martens Clause

The Martens Clause refers to a paragraph found in the 1899 Hague Peace

Convention. It says: “Until a more complete code of laws of war has been issued,

the High Contracting parties deem it expedient to declare that, in cases not included

in the Regulations adopted by them, the inhabitants and belligerents remain under

the protection and the rule of the principles of the law of nations as they result from

the usages established among civilized peoples, from the laws of humanity, and the

dictates of the public conscience.

This was first inserted by the Russian publicist Fyodor Martens and has

found its way into a number of treaties including the 1949 Vienna Convention and

the First Additional Protocol of 1977. It has been cited by, among others, the ICJ in

the Legality of the Threat or Use of Nuclear Weapons.

What the clause does is to put the “laws of humanity” and the “dictates of

public conscience” on the same level as “usages of states” or usus thus suggesting

that even without practice or usus or at least without consistent practice there can

emerge a principle of law based on laws of humanity and the dictates of public

conscience. In other words, one need not wait for thousands of civilians to be killed

before a ban becomes effective.

Treaties.

Another important source are treaties or international agreements, whether

bilateral or multilateral. Treaties determine the rights and duties of states just as

individual rights are determined by contracts. Their binding force comes from the

voluntary decision of sovereign states to obligate themselves to a mode of behavior.

While treaties are generally binding only on the parties, the number of the

contracting parties and the generality of the acceptance of the rules created by the

treaty can have the effect of creating a universal law

16 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

in much the same way that general practice suffices to create customary law.

The question is sometimes asked whether treaties are law or are merely

obligations which the law says must be carried out. On the basis of this question, a

distinction is made between “contract treaties” or “law making treaties.” The

distinction, perhaps, is not very useful because all treaties must be observed by the

parties under the principle of pacta sunt servanda.

Treaties and custom

Whether or not treaties override custom depends on the intention of the

parties. If the treaty is intended to be declaratory of customary law, it may be seen

as evidence of customary law.

Normally, treaties and custom can be complementary. As seen, for instance,

in Nicaragua v. United States, adherence to treaties can be indicative also of

adherence to practice as opinio juris. What happens, however, when treaty and

custom contradict each other? Different situations may have different solutions.

If a treaty comes later than a particular custom, as between the parties to the

treaty, the treaty should prevail. A treaty manifests a deliberate choice of the parties

and the principle of pacta sunt servanda should be followed. Thus, for instance, in

the Wimbledon Case (PCIJ 1923), although the PCIJ recognized that customary

international law prohibited belligerents from ferrying armaments through a neutral

state, the Court said that Article 380 of the Treaty of Versailles opened the Kiel

Canal to passage “to the vessels of commerce and of war of all nations at peace

with Germany on terms of entire equality.”

The Kiel Canal cut through Germany linking the Baltic and North Sea. The

Court said:

The Court considers that the terms of Article 380 are categorical

and give rise to no doubt. It follows that the canal has ceased to be an

internal and national navigable waterway, the use of which by the

vessels of states other than the riparian state is left entirely to the

discretion of that state, and that it has become an international

waterway intended to provide under treaty guarantee easier access to

the Baltic for the benefit of all nations of the word....

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THE SOURCES OF INTERNATIONAL LAW

However, if a later treaty is contrary to a customary rule that has the status of

jus cogens, custom will prevail. This is because of Article 53 of the Vienna

Convention on the law of Treaties:

A treaty is void if, at the time of its conclusion, it conflicts with

a peremptory norm of general international law. For the purposes of

the present Convention, a peremptory norm of general international

law is a norm accepted and recognized by the international community

of States as a whole as a norm from which no derogation is permitted

and which can be modified only by a subsequent norm of general

international law having the same character.

In a situation, where custom develops after a treaty, the rule is not clear. The

logical rule perhaps should be that the later custom, being the expression of a later

will, should prevail. But such an approach would militate against the certainty of

treaties. In practice, however, an attempt is made to keep the treaty alive by efforts

at reconciling a treaty with the developing custom. An example given of this

reconciliation is the Anglo-French Continental Shelf Case (1979). The issue was

the applicability of the equidistance principle in the delimitation of the continental

shelves of the United Kingdom and France. The Court said:

Article 6 ... does not formulate the equidistance principle and

“special circumstances” as two separate rules. The rule there stated in

each of the two cases is a single one, a combined equidis- tancespecial circumstances rule. ...

The Court does not overlook that under Article 6 the equidistance principle ultimately possesses an obligatory force which it

does not have in the same measure under the rules of customary law,

for Article 6 makes the application of the equidistance principle a

matter of treaty obligation for Parties to the Convention. But the

combined character of the equidistance-special circumstances rule

means that the obligation to apply the equidistance principle is always

one qualified by the condition “unless another boundary line is

justified by special circumstances. ...”

Treaties will be treated in greater detail in Chapter 3.

General principles of law recognized by civilized nations.

The third source cited by the Statute are “the general principles of law

recognized by civilized nations.” This is also referred to by the

18 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Restatement as “general principles of law recognized by or common to the world’s

major legal systems.” This has reference not to principles of international law but

to principles of municipal law common to the legal systems of the world. They

may, in a sense, be said to belong to no particular system of law but are evidence

rather of the fundamental unity of law. Most of these principles, however, have

either become part of customary law or have been incorporated into conventional

international law.

It is worth noting that the Restatement avoids the language “civilized

nations.” Its colonial connotation is now unacceptable in the international

community.

The Restatement refers to them as “supplementary rules of international

law.” These may be found in “judicial decisions and the teachings of the most

highly qualified publicists of the various nations” which the Statute refers to as

“subsidiary means for the determination of rules of law.”

An example would be the 1928 Chorzow Factory case

7 where the

Permanent Court declared that “it is a general conception of law that every

violation of an engagement involves an obligation to make reparation.” Another

example would be the affirmation that private rights acquired under one regime

does not cease upon the change of government. The principle of estoppel is yet

another example. Other examples can be given.

The affirmation of general principles of law found in domestic systems as a

source of international law makes up for the fact that there is no international

legislative system. The insertion of this provision in Article 38(1) thus plugs some

of the gaps in the existing international law system. Barcelona Traction Case (ICJ

1964) adverted to this purpose when it said:

If the Court were to decide the case in disregard of the relevant

institutions of municipal law, it would without justification, invite

serious legal difficulties. It would lose touch with reality....

It is to rules generally accepted by municipal systems,... and not to the

municipal law of a particular State, that international law refers.

P.C J J, Ser. A, No. 9.

CHAPTER 2

THE SOURCES OF INTERNATIONAL LAW

More will be said in Chapter 4 on the relation between international law and

municipal law.

Judicial decisions.

Article 38 of the Statute directs the Court to apply judicial decisions as

subsidiary means for the determination of the rules of law. But this is made subject

to Article 59 which says that “the decisions of the court have no binding force

except between the parties and in respect of that particular case.” Hence, such

decisions do not constitute stare decisis. However, the decisions of the ICJ are not

only regarded as highly persuasive in international law circles; they have also

contributed to the formulation of principles that have become international law.

Later in this book it will be seen that the ICJ is the source of principles recognizing

the international personality of international organizations, the doctrine on “genuine

link” between a person and a state for purposes of jurisdiction, and the straight

baseline method in drawing baselines for archipelagos. Similarly, arbitral decisions

have been instrumental on the formation of international law principles.

The teachings of highly qualified writers and “Publicists.”

In many cases of first impression, the only authorities that can be cited are

writers. The extent to which they are referred to depends on the tradition of the

court or of individual judges. In common law jurisdictions, there is reluctance to

use them, more so in the US than in Britain. In civil law jurisdictions, there is more

ready reference to writers. The ICJ is generally reluctant to refer to writers but they

are often taken into consideration.

“Publicists” are institutions which write on international law. They also play

a role. The more significant ones are: The International Law Commission, an organ

of the U.N.; the Institut de Droit International, the International Law Association, a

multinational body; the (Revised) Restatement of Foreign Relations Law of the

United States; and the annual publication of the Hague Academy of International

Law. It should be noted, however, that these institutions are generally government

sponsored; hence, they bear within themselves a potential for national bias.

20 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Equity.

The Permanent Court of Justice had occasion to use equity as a source of law

in the case of Diversion of Water from the Meuse (Netherlands v. Belgium).

Netherlands had complained that certain canals constructed by Belgium were in

violation of an agreement in that the construction would alter the water level and

rate of flow of the Meuse River. The Court rejected the Netherlands claim and a

Belgian counterclaim based on the construction of a lock by the Netherlands at an

earlier time. Judge Hudson, in an individual concurring opinion said:

It would seem to be an important principle of equity that where

two parties have assumed an identical or a reciprocal obligation, one

party which is engaged in a continuing non-performance of that

obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party. The principle finds

expression in the so-called maxims of equity which exercised great

influence in the creative period of the development of the AngloAmerican law. Some of these maxims are, “Equality is equity”; “He

who seeks equity must do equity.” It is in line with such maxims that

“a court of equity refuses relief to a plaintiff whose conduct in regard

to the subject-matter of the litigation has been improper.” Halsbury’s LAWS

OF ENGLAND (2nd Ed., 1934), p.

87. A very similar principle was received into Roman Law. The

obligations of a vendor and a vendee being concurrent, “neither could

compel the other to perform unless he had done, or tendered, his own

part.”

Judge Hudson justified his use of equity thus:

The Court has not been expressly authorized by its Statute to

apply equity as distinguished from law. Nor, indeed, does the Statute

expressly direct its application of international law, though as has been

said on several occasions the Court is “a tribunal of international law.”

Series A, No. 7, p. 19; Series A, Nos. 20/21, p.

124. Article 38 of the Statute expressly directs the application of

“general principles of law recognized by civilized nations,” and in

more than one nation principles of equity have an established place in

the legal system. The Court’s recognition of equity as a part of

international law is in no way restricted by the special power conferred

upon it “to decide a case ex aequo et bono, if the parties agree

thereto.” [Citations omitted.] It must be concluded, therefore, that

under Article 38 of the Statute, if not independently of that Article, the

Court has some freedom to consider principles of equity as part of the

international law which it must apply.

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THE SOURCES OF INTERNATIONAL LAW

Equity, when accepted, is an instrument whereby conventional or customary

law may be supplemented or modified in order to achieve justice. It has both a

procedural and substantive aspect. Procedurally, it means a mandate given to a

judge to exercise discretion in order to achieve a determination that is more

equitable and fair. Different kinds of equity are distinguished: intra legem (within

the law), that is, the law is adapted to the facts of the case; praeter legem (beyond

the law), that is, it is used to fill the gaps within the law; and contra legem (against

the law), that is, a refusal to apply the law which is seen as unjust. Obviously, this

can be an area of great controversy.

Other supplementary evidence.

UN Resolutions

Declarations of legal principles and Resolutions by the United Nations are

generally considered merely recommendatory. But if they are supported by all the

states, they are an expression of opinio juris communis. But a growing number of

weaker nations, who have a very substantial vote, feel that U.N. Resolutions should

have the force of law. Resolutions can also be a reflection of what has become

customary law.

“Soft Law"

Not included among the sources is what a growing literature refers to as “soft

law.” Others prefer to call this category “non-treaty agreements.” They are

international agreements not concluded as treaties and therefore not covered by the

Vienna Convention on the Law of Treaties.

Other sources of soft law are administrative rules which guide the practice of

states in relation to international organizations. These are mostly administrative

procedures that are carried out with varying degrees of consistency and uniformity

that may eventually ripen into customary law or become formalized later on in

treaties.

Soft law plays an important role in international relations because often

states prefer non-treaty obligations as a simpler and more flexible foundation for

their future relations. The difference lies mainly in the wish of the parties to model

their relationship in a way that excludes the application of treaty or customary law

on the consequences of a breach of obligations.

Chapter 3 THE LAW OF TREATIES

Treaties can assume various names. They can be conventions, pacts,

covenants, charters, protocols, concordat, modus vivendi, etc. They represent the

most deliberate form of commitment through which governments cooperate with

one another. The generic term that is used is international agreements. In the

absence of an international legislative body, international agreements are a

convenient tool through which states are able to project common expectations.

The law on treaties is found in the 1969 Vienna Convention on the Law of

Treaties. It governs treaties between states. It entered into force in January 1980.

While the document is not retroactive in effect, it does contain customary law

precepts antedating 1969.

A Convention on the Law of Treaties Between States and International

Organizations or Between International Organizations was adopted on March

26,1986. It should enter into force 30 days after the 35th ratification or accession of

states.

Definition of treaties.

The Vienna Convention defines a treaty as “an international agreement

concluded between States in written form and governed by international law,

whether embodied in a single instrument or in two or more related instruments and

whatever its particular designation.” The Vienna Convention applies to

international agreements that satisfy the Convention’s definition, specifically that

they be in writing and reflective of the intention of the parties to be bound, and

governed by international law.

While treaties are generally in written form, there are writers who hold that

even an oral agreement can be binding. However, only writ

CHAPTER 3

THE LAW OF TREATIES

ten agreements that are new, come under the provisions of the Vienna Convention.

No particular form is prescribed. Thus for instance, in Qatar v. Bahrain,' the

exchange of notes between the two heads of state was considered an international

agreement.

QUATAR V. BAHRAIN ICJ 1994

The Parties agree that the exchanges of letters of December

1987 constitute an international agreement with binding force in their

mutual relations. Bahrain, however, maintains that the Minutes of 25

December 1990 were no more than a simple record of negotiations,

similar in nature to the Minutes of the Tripartite Committee; that

accordingly they did not rank as an international agreement and could

not, therefore, serve as a basis for the jurisdiction of the Court.

The Court would observe, in the first place, that international

agreements may take a number of forms and be given a diversity of

names. Article 2, paragraph 1 of the Vienna Convention on the Law of

Treaties of 23 May 1969 provides that for the purposes of that

Convention, ‘treaty’ means an international agreement concluded

between States in written form and governed by international law,

whether embodied in a single instrument or in two or more related

instruments and whatever its particular designation,”

Furthermore, as the Court said, in a case concerning a joint

communique, “it knows of no rule of international law which might

preclude a joint communique from constituting an international

agreement to submit a dispute to arbitration or judicial settlement”

(Aegean Sea Continental Shelf; l.CJ. Reports IY78, p. 39, para. 96).

In order to ascertain whether an agreement of that kind has been

concluded, “the Court must have regard above all to its actual terms

and to the particular circumstances in which it was drawn up.” (ibid.)

The 1990 Minutes refer to the consultations between the two

Foreign Ministers of Bahrain and Qatar, in the presence of the For-

'[1994] ICJ Rep.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

eign Minister of Saudi Arabia, and state what had been “agreed”

between the Parties. In paragraph 1, the commitments previously

entered into are reaffirmed (which includes, at the least, the agreement

constituted by the exchanges of letters of December 1987). In

paragraph 2, the Minutes provide for the good offices of the King of

Saudi Arabia to continue until May 1991, and exclude the submission

of the dispute to the Court prior thereto. The circumstances are

addressed under which the dispute may subsequently be submitted to

the Court. Qatar’s acceptance of the Bahraini formula is placed on

record. The Minutes provide that the Saudi good offices are to

continue while the case is pending before the Court, and go on to say

that, if a compromise agreement is reached during that time, the case is

to be withdrawn.

Thus, the 1990 Minutes include a reaffirmation of obligations

previously entered into; they entrust King Fahd with the task of

attempting to find a solution to the dispute during a period of six

months; and lastly, they address the circumstances under which the

Court could be seised after May 1991.

Accordingly, and contrary to the contentions of Bahrain, the

Minutes are not a simple record of a meeting, similar to those drawn

up within the framework of the Tripartite Committee; they do not

merely give an account of discussions and summarize points of

agreement and disagreement. They enumerate the commitments to

which the Parties have consented. They thus create rights and

obligations in international law for the Parties. They constitute an

international agreement.

Bahrain, however, maintains that the signatories of the Minutes

never intended to conclude an agreement of this kind. It submitted a

statement made by the Foreign Minister of Bahrain and dated 21 May

1992, in which the States that “at no time did I consider that in signing

the Minutes I was committing Bahrain to a legally binding

agreement.” He goes on to say that, according to the Constitution of

Bahrain, “treaties ‘concerning the territory of the State’ can come into

effect only after their positive enactment as a law.” The Minister

indicates that he would therefore not have been permitted to sign an

international agreement taking effect at the time of the signature. He

was aware of that situation, and was prepared to subscribe to a

statement recording a political understanding, but not to sign a legally

binding agreement.

The Court does not find it necessary to consider what might

have been the intentions of the Foreign Minister of Bahrain or,

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THE LAW OF TREATIES

for that matter, those of the Foreign Minister of Qatar. The two

Ministers signed a text recording commitments accepted by their

Governments, some of which were to be given immediate application.

Having signed such a text, the Foreign Minister of Bahrain is not in a

position subsequently to say that he intended to subscribe only to a

“statement recording a political understanding,” and not to an

international agreement.

The Court concludes that the Minutes of 25 December 1990,

like the exchanges of letters of December 1987, constitute an international agreement creating rights and obligations for the Parties.

Similar was the case of Norway v. Denmark} The case involved a dispute

between Denmark and Norway over sovereignty in Eastern Greenland. In the

course of negotiations, Denmark had offered certain concessions important for

Norway for the purpose of persuading Norway not to obstruct Danish plans in

regard to Greenland. In reply, the Norwegian Minister accepted the offer: “I told the

Danish Minister today that the Norwegian Government would not make any

difficulty in the settlement of this question.” The Court found this declaration sufficient to bind the Norwegian government.

In fact, even a unilateral declaration concerning legal or factual situations

may create legal obligations. This was what happened in Nuclear Test Cases:

Australia v. France, New Zealand v. France,

France was a signatory to the

Nuclear Test Ban Treaty and thus continued to conduct tests in the South Pacific

until 1973. The tests conducted in 1972 and 1973 led to the filing of protests by

Australia and New Zealand. The case, however, was taken off the Court’s list

without a decision when France announced by a series of unilateral announcements

that it would conduct no further tests after 1973. The Court nevertheless

commented on the legal significance of these announcements saying:

It is well-recognized that declarations made by way of unilateral

acts concerning legal or factual situations, may have the effect of

creating legal obligations. Declarations of this kind may be, and often

are, very specific. When it is the intention of the State making the

declaration that it should become bound according to

[1933] P.C.IJ. Ser.

[ 1974] ICJ Rep.

26 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

its terms, that intention confers on the declaration the character of a

legal undertaking, the State being thenceforth legally required to

follow a course of conduct consistent with the declaration. An

undertaking of this kind, if given publicly, and with an intent to be

bound, even though not made within the context of international

negotiations, is binding....

The Court added:

In announcing that the 1974 series of atmospheric tests would

be the last, the French Government conveyed to the world at large ...

its intention to terminate these tests. It was bound to assume that other

States might take note of these statements and rely on their being

effective. The validity of these statements and their legal consequences

must be considered within the general framework of the security of

international intercourse, and the confidence and trust which are so

essential in the relations among States.

Two characteristics the Court found which convinced it that a binding

obligation had been incurred. First, the commitment was very specific; second,

there was a clear intent to be bound.

This, however, did not prevent France from conducting nuclear tests in the

South Pacific. After having conducted six nuclear tests, France responded to

worldwide outrage and stopped the testing at six in 1996 rather than the originally

planned eight.

Moreover, care in attributing binding effect to a unilateral declaration was

expressed in a case involving the Trade Act of 1974 between the European and the

USA.4

7.118 Attributing international legal significance to unilateral

statements made by a State should not be done lightly and should be

subject to strict conditions. Although the legal effects we are ascribing

to the US statements made to the DSB [Dispute Settlement Body]

through this Panel are of a more narrow and limited nature and reach

compared to other internationally relevant instances in which legal

effect was given to unilateral declarations, we have conditioned even

these limited effects on the fulfillment

♦CASE CONCERNING SECTIONS 301-310 OF THE TRADE ACT OF 1974 (EUROPEAN UNION

v. USA, 1999).

CHAPTER 3

THE LAW OF TREATIES

of the most stringent criteria. A sovereign State should normally not

find itself legally affected on the international plane by the casual

statement of any of the numerous representative speaking on its behalf

in today’s highly interactive and inter-dependent world nor by a

representation made in the heat of legal argument on a State’s behalf.

This, however, is very far from the case before us.

7.121 The statements made by the US before this Panel were a

reflection of official US policy, intended to express US understanding

of its international obligations as incorporated in domestic US law.

The statements did not represent a new US policy or undertaking but

the bringing of a pre-existing US of a pre-existing US policy and

undertaking made in a domestic setting into an international forum.

Function of treaties.

Treaties have many functions. They are sources of international law, they

serve as the charter of international organizations, they are used to transfer territory,

regulate commercial relations, settle disputes, protect human rights, guarantee

investments, etc.

The different kinds of treaties may be classified from the standpoint of their

relevance as source of international law.

The first are multilateral treaties open to all states of the world. They create

norms which are the basis for a general rule of law. They are either codification

treaties or “law-making treaties” or they may have the character of both.

Another category includes treaties that create a collaborative mechanism.

These can be of universal scope {e.g., regulation of allocation of radio frequencies)

or regional (e.gfishing agreements). They operate through the organs of the

different states.

The third and largest category of treaties are bilateral treaties. Many of these

are in the nature of contractual agreements which create shared expectations such as

trade agreements of various forms. They are sometimes called “contract treaties.”

While treaties are generally binding only on the parties, the number of the

contracting parties and the generality of the acceptance of specific rules created by

the treaty can have the effect of creating a

28 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

universal law in much the same way that general practice suffices to create

customary law.

The making of treaties.

Negotiation Bilateral treaties, and multilateral treaties among a small

number, generally originate from the foreign ministries. Negotiation is done

through foreign ministries. Larger multilateral treaties are negotiated in diplomatic

conferences which are run like a legislative body. Power to negotiate The

negotiators must possess powers to negotiate. An act relating to the conclusion of a

treaty by one who has no proper authorization has no legal effect unless confirmed

by his state:

Article 7. Full powers.

1. A person is considered as representing a State for the

purpose of adopting or authenticating the text of a treaty or for the

purpose of expressing the consent of the State to be bound by a treaty

if:

(a) he produces appropriate full powers; or

(b) it appears from the practice of the States concerned

or from other circumstances that their intention was to consider

that person as representing the State for such purposes and to

dispense with full powers.

2. In virtue of their functions and without having to produce

full powers, the following are considered as representing their State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts

relating to the conclusion of a treaty;

(b) heads of diplomatic missions, for the purpose of

adopting the text of a treaty between the accrediting State and

the State to which they are accredited;

its organs, for the purpose of adopting the text of a treaty in that

conference, organization or organ.

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THE LAW OF TREATIES

Authentication of text

Negotiations conclude with the signing of the document. The signatures

serve as authentication of the document.

Article 9. Adoption of the text:

1. The adoption of the text of a treaty takes place by the

consent of all the States participating in its drawing up except as

provided in paragraph 2.

2. The adoption of the text of a treaty at an international

conference takes place by the vote of two-thirds of the States present

and voting, unless by the same majority they shall decide to apply a

different rule.

Article 10. Authentication of the text:

The text of a treaty is established as authentic and definitive:

(a) by such procedure as may be provided for in the text or

agreed upon by the States participating in its drawing up; or

(b) failing such procedure, by the signature, signature ad

referendum or initialing by the representatives of those States of the

text of the treaty or of the Final Act of a conference incorporating the

text.

The authentication of a treaty makes the text authoritative and

definitive. It is necessary so that the states will know definitively the

contents of the text and avoid any misunderstanding as to the terms.

Consent to be bound

Once the document has been signed, there are stages which follow which

culminate in making the document binding. The most important step is the consent

to be bound. There are various ways by which consent to be bound is expressed:

Article 11. Means of expressing consent to be bound by a treaty:

The consent of a State to be bound by a treaty may be expressed

by signature, exchange of instruments constituting a treaty, ratification,

acceptance, approval or accession, or by any other means if so agreed.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Article 12. Consent to be bound by a treaty expressed by

signature:

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when:

(a) the treaty provides that signature shall have that effect;

(b) it is otherwise established that the negotiating States were

agreed that signature should have that effect; or

appears from the full powers of its representative or was

expressed during the negotiation.

2. For the purposes of paragraph 1:

(a) the initialing of a text constitutes a signature of the

treaty when it is established that the negotiating States so

agreed; (b) the signature and referendum of a treaty by a

representative, if confirmed by his State, constitutes a full

signature of the treaty.

Article 13. Consent to be bound by a treaty expressed by an

exchange of instruments constituting a treaty:

The consent of States to be bound by a treaty constituted by

instruments exchanged between them is expressed by that exchange

when:

(a) the instruments provide that their exchange shall have

that effect; or (b) it is otherwise established that those States were

agreed that the exchange of instruments should have that effect, xxx

Article 14. Consent to be bound by a treaty expressed by

ratification, acceptance or approval:

1. The consent of a State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to

be expressed by means of ratification; (b) it is otherwise established

that the negotiating States were agreed that ratification should be

required; (c) the representative of the State has signed the treaty

subject to ratification; or (d) the intention of the State to sign the treaty

subject to ratification appears from the full powers of its representative

or was expressed during the negotiation.

2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those

which apply to ratification.

CHAPTER 3 31

THE LAW OF TREATIES

The manner of ratification differs from state to state. In the Philippines, it is

governed by Article VII, Section 21 of the Constitution. But between signature and

ratification a state is required by Article 18(a) not to engage in acts which can

defeat the purpose of the treaty.

Ratification is next followed by either exchange of ratification, in bilateral

treaties, or, in multilateral treaties, deposit of ratification:

Article 16. Exchange or deposit of instruments of ratification,

acceptance, approval or accession:

Unless the treaty otherwise provides, instruments of ratification,

acceptance, approval or accession establish the consent of a State to be

bound by a treaty upon:

(a) their exchange between the contracting States; (b) their

deposit with the depositary; or (c) their notification to the contracting

States or to the depositary, if so agreed.

Article 17 Consent to be bound by part of a treaty and choice of

differing provisions:

1. Without prejudice to Articles 19 to 23, the consent of a

State to be bound by part of a treaty is effective only if the treaty so

permits or the other contracting States so agree.

2. The consent of a State to be bound by a treaty which

permits a choice between differing provisions is effective only if it is

made clear to which of the provisions the consent relates.

Accession to a treaty

States which did not participate in the initial negotiation may also express

their consent to be bound by “accession.” Article 15 of the Convention says:

The consent of a State to be bound by a treaty is expressed by

accession when:

(a) the treaty provides that such consent may be expressed by

that State by means of accession;

(b) it is otherwise established that the negotiating States were

agreed that such consent may be expressed by that State by means of

accession; or

may be expressed by that State by means of accession.

32 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Reservations

In deference to the sovereignty of states, the Vienna Convention allows for

“reservations.” Article 2 defines reservations as “a unilateral statement, however

phrased or named, made by a State, when signing, ratifying, accepting, approving

or acceding to a treaty, whereby it purports to exclude or to modify the legal effect

of certain provisions of the treaty in their application to that State.” In this regard,

therefore, treaties are different from statutes. Statutes must necessarily apply to all.

Reservations, however, are different from “interpretative declarations” which

are not meant to be a derogation from the treaty but an expression of how a state

understands its adoption of the treaty.

The rules on reservations are found in Articles 19 to 23:

Article 19. Formulation of reservations.

A State may, when signing, ratifying, accepting, approving or

acceding to a treaty, formulate a reservation unless:

(a) the reservation is prohibited by the treaty; (b) the treaty

provides that only specified reservations, which do not include the

reservation in question, may be made; or (c) in cases not falling under

sub-paragraphs (a) and (b), the reservation is incompatible with the

object and purpose of the treaty.

Article 20. Acceptance of and objection to reservations

1. A reservation expressly authorized by a treaty does not

require any subsequent acceptance by the other contracting States

unless the treaty so provides.

2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an

essential condition of the consent of each one to be bound by the

treaty, a reservation requires acceptance by all the parties.

3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation

requires the acceptance of the competent organ of that organization.

4. In cases not falling under the preceding paragraphs and

unless the treaty otherwise provides:

(a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty

CHAPTER 3

THE LAW OF TREATIES

in relation to that other State if or when the treaty is in force for

those States;

(b) an objection by another contracting State to a

reservation does not preclude the entry into force of the treaty as

between the objecting and reserving States unless a contrary

intention is definitely expressed by the objecting State;

the treaty and containing a reservation is effective as soon as at

least one other contracting State has accepted the reservation.

5. For the purposes of paragraphs 2 and 4 and unless the

treaty otherwise provides, a reservation is considered to have been

accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of

the reservation or by the date on which it expressed its consent to be

bound by the treaty, whichever is later.

Article 21. Legal effects of reservations and of objections to

reservations:

1. A reservation established with regard to another party in

accordance with Articles 19,20 and 23:

(a) modifies for the reserving State in its relations with

that other party the provisions of the treaty to which the

reservation relates to the extent of the reservation; and

(b) modifies those provisions to the same extent for

that other party in its relations with the reserving State.

2. The reservation does not modify the provisions of the

treaty for the other parties to the treaty inter se.

3. When a State objecting to a reservation has not opposed

the entry into force of the treaty between itself and the reserving State,

the provisions to which the reservation relates do not apply as between

the two States to the extent of the reservation.

Article 22. Withdrawal of reservations and of objections to

reservations:

1. Unless the treaty otherwise provides, a reservation may

be withdrawn at any time and the consent of a State which has

accepted the reservation is not required for its withdrawal.

34 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

2. Unless the treaty otherwise provides, an objection to a

reservation may be withdrawn at any time.

3. Unless the treaty otherwise provides, or it is otherwise

agreed:

(a) the withdrawal of a reservation becomes operative in

relation to another contracting State only when notice of it has

been received by that State; (b) the withdrawal of an objection to

a reservation becomes operative only when notice of it has been

received by the State which formulated the reservation.

Article 23. Procedure regarding reservations:

1. A reservation, an express acceptance of a reservation and

an objection to a reservation must be formulated in writing and

communicated to the contracting States and other States entitled to

become parties to the treaty.

2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally

confirmed by the reserving State when expressing its consent to be

bound by the treaty. In such a case the reservation shall be considered

as having been made on the date of its confirmation.

3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not

itself require confirmation.

4. The withdrawal of a reservation or of an objection to a

reservation must be formulated in writing.

A proliferation of reservations in multilateral treaties can very well defeat the

purpose of a treaty. In bilateral treaties, a reservation by one party means a rejection

of the treaty and necessitates re-negotiation. Reservations, therefore, are meant only

for multilateral treaties.

Must a reservation be consented to by all parties for it to be effective? This

question was answered by the ICJ in its advisory opinion in Reservations to the

Genocide Convention (ICJ Reports 1951) saying, by seven votes to five, that “a

state which has made and maintained a reservation which has been objected to by

one or more parties to the Convention but not by others, can be regarded as a party

to the Convention if the reservation is compatible with the object and purpose of the

Convention.” The Court added that compatibility could be decided by

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states individually since “if a party to the Convention objects to a reservation which

it considers incompatible with the object and purpose of the Convention, it can

consider that the reserving state is not a party to the Convention.” Under this view, it

is possible for different legal relationships to arise among parties to the same treaty.

This view some see as reflected in Article 19, supra, of the Vienna Convention.

The Philippines and the 1982 Convention on the Law of the Sea

In this connection, it should be noted that the provision on “archipelagic

waters” found in the 1982 Convention on the Law of the Sea conflicts with the

Philippine claim in Article I of the Constitution that the waters connecting the

islands, irrespective of their breadth and dimension, are “internal waters.” The

Philippine government is clearly aware of these possible conflicts. Hence, upon its

ratification of the Convention on the Law of the Sea on August 5,1984, it added the

following reservation:5

1. The signing of the Convention by the Government of the

Republic of the Philippines shall not in any manner impair or prejudice the

sovereign rights of the Republic of the Philippines under and arising from the

Constitution of the Philippines;

2. Such signing shall not in any manner affect the sovereign rights

of the Republic of the Philippines as successor to the United States of

America, under and arising out of the Treaty of Paris between Spain and the

United States of America of December 10, 1988, and the Treaty of

Washington between the United States of America and Great Britain of

January 2,1930;

uch signing shall not diminish or in any manner affect the rights and

obligations of the Contracting Parties under the Mutual Defense Treaty

between the Philippines and the United States of America of August 30,1951,

and its related interpretative instruments; nor those under any pertinent

bilateral or multilateral treaty or agreement to which the Philippines is a

party;

5UN Office for Oceans Affairs and the Law of the Sea, Law of the Sea Bulletin, Special Issue 1, March

1987, Annex II, p. 6, quoted in Sweeney, Oliver, Leech, THE INTERNATIONAL LEGAL SYSTEM 193 (3rd Ed., 1988).

36 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

6. The provisions of the Convention on archipelagic passage

through sea lanes do not nullify or impair the sovereignty of the Philippines

as an archipelagic State over the sea lanes and do not deprive it of authority

to enact legislation to protect its sovereignty, independence, and security;

7. The concept of archipelagic waters is similar to the concept of

internal waters under the Constitution of the Philippines, and removes straits

connecting these waters with the economic zone or high sea from the rights

of foreign vessels to transit passage for international navigation;

The USSR filed a formal protest against the Philippine reservation. However,

the reservation does not seem to be necessary because Article 8(2) itself says that

the new rule applies only to “areas which had not previously been considered as”

internal waters. The 1973 Constitution, which in its Article I classified as internal

waters what is now referred to as archipelagic waters, pre-dates the 1982

Convention.

Reservations in Human Rights Treaties

The Human Rights Committee of the UN made the following observations

regarding reservations in human rights treaties:

17. As indicated above, it is the Vienna Convention on the Law

of Treaties that provides the definition of reservations and also the

application of the object and purpose test in the absence of other

specific provisions. But the Committee believes that its provisions on

the role of State objections in relation to reservations are inappropriate

to address the problem of reservations to human rights treaties. Such

treaties, and the Covenant specifically, are not a web of inter-State

exchanges of mutual obligations. They concern the endowment of

individuals with rights. The principle of inter-State reciprocity has no

place, save perhaps in the limited context of reservations to

declarations on the Committee’s competence under Article 41. And

because the operation of the classic rules on reservations is so

inadequate for the Covenant, States have often not seen any legal

interest in or need to object to reservations. The absence of protest by

States cannot imply that a reservation is either compatible or

incompatible with the object and purpose of the Covenant. Objections

have been occasional, made by some States but not others, and on

grounds not always

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specified; when an objection is made, it often does not specify a legal

consequence, or sometimes even indicates that the objecting party

nonetheless does not regard the Covenant as not in effect as between

the parties concerned. In short, the pattern is so unclear that it is not

safe to assume that a non-objecting State thinks that a particular

reservation is acceptable. In the view of the Committee, because of the

special characteristics of the Covenant as a human rights treaty, it is

open to question what effect objections have between States inter se.

However, an objection to a reservation made by States may provide

some guidance to the Committee in its interpretation as to its

compatibility with the object and purpose of the Covenant.

Entry into force of treaties

Treaties enter into force on the date agreed upon by the parties. Where no

date is indicated, the treaty enters into force once consent has been given.

Multilateral treaties generally contain a provision which says how many states have

to accept the treaty before it can come into force. The rules on entry into force are

as follows:

Article 24. Entry into force:

1. A treaty enters into force in such manner and upon such

date as it may provide or as the negotiating States may agree.

2. Failing any such provision or agreement, a treaty enters into

force as soon as consent to be bound by the treaty has been established

for all the negotiating States.

3. When the consent of a State to be bound by a treaty is

established on a date after the treaty has come into force, the treaty

enters into force for that State on that date, unless the treaty otherwise

provides.

4. The provisions of a treaty regulating the authentication of

its text, the establishment of the consent of States to be bound by the

treaty, the manner or date of its entry into force, reservations, the

functions of the depositary and other matters arising necessarily before

the entry into force of the treaty apply from the time of the adoption of

its text.

Article 25. Provisional application:

1. A treaty or a part of a treaty is applied provisionally

pending its entry into force if:

38 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

(a) the treaty itself so provides; or (b) the negotiating

States have in some other manner so agreed.

2. Unless the treaty otherwise provides or the negotiating

States have otherwise agreed, the provisional application of a treaty or

a part of a treaty with respect to a State shall be terminated if that State

notifies the other States between which the treaty is being applied

provisionally of its intention not to become a party to the treaty.

Application of treaties

The first fundamental rule on treaties is pacta sunt servanda. Article 26 of

the Convention says that “every treaty in force is binding upon the parties to it and

must be performed by them in good faith.”

A second fundamental rule, Article 46, is that a “party may not invoke the

provisions of its internal law as justification for its failure to perform a treaty.”

As to the territorial scope of its applicability, Article 29 says: “Unless a

different intention appears from the treaty or is otherwise established, a treaty is

binding upon each party in respect of its entire territory.”

Interpretation of treaties

Article 31 contains the rules for the interpretation of treaties:

1. A treaty shall be interpreted in good faith in accordance

with the ordinary meaning to be given to the terms of the treaty in their

context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a

treaty shall comprise, in addition to the text, including its preamble

and annexes:

(a) any agreement relating to the treaty which was

made between all the parties in connection with the conclusion

of the treaty; (b) any instrument which was made by one or

more parties in connection with the conclusion of the treaty and

accepted by the other parties as an instrument related to the

treaty.

3. There shall be taken into account, together with the

context:

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(a) any subsequent agreement between the parties

regarding the interpretation of the treaty or the application of its

provisions;

b) any subsequent practice in the application of the

treaty which establishes the agreement of the parties regarding

its interpretation;

the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 31 combines various approaches to treaty interpretation. Article 31(1)

follows the “objective” approach, that is, interpretation according to the ordinary

meaning of the words. This is supplemented by the “teleological” approach in

Article 31(2), that is, interpretation according to the telos or purpose of the treaty.

Finally, Article 31(3) and (4) follow a “subjective” approach which honors special

meaning given by the parties.

Where there are ambiguities in the meaning of a treaty, resort may be made

to supplementary sources. Articles 32 and 33 are relevant:

Article 32. Supplementary means of interpretation.

Recourse may be had to supplementary means of interpretation,

including the preparatory work of the treaty and the circumstances of

its conclusion, in order to confirm the meaning resulting from the

application of Article 31, or to determine the meaning when the

interpretation according to Article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

Article 33. Interpretation of treaties authenticated in two or more

languages:

1. W

hen a treaty has been authenticated in two or more languages, the text

is equally authoritative in each language, unless the treaty provides or

the parties agree that, in case of divergence, a particular text shall

prevail.

2. A version of the treaty in a language other than one of

those in which the text was authenticated shall be considered an

authentic text only if the treaty so provides or the parties so agree.

40 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

3. The terms of the treaty are presumed to have the same

meaning in each authentic text.

4. Except where a particular text prevails in accordance with

paragraph 1, when a comparison of the authentic texts discloses a

difference of meaning which the application of Articles 31 and 32 does

not remove, the meaning which best reconciles the texts, having regard

to the object and purpose of the treaty, shall be adopted.

In case there is conflict among “official texts,” the language that is agreed by

the parties as authoritative is followed.

AIR FRANCE V. SAKS 470 US 392

(Syllabus) Article 17 of the Warsaw Convention makes air

carriers liable for injuries sustained by a passenger “if the accident

which caused the damage so sustained took place on board the aircraft

or in the course of any of the operations of embarking or

disembarking.” Respondent, while a passenger on petitioner’s jetliner

as it descended to land in Los Angeles on a trip from Paris, felt severe

pressure and pain in her left ear, and the pain continued after the

jetliner landed. Shortly thereafter, respondent consulted a doctor who

concluded that she had become permanently deaf in her left ear. She

then filed suit in a California state court, alleging that her hearing loss

was caused by negligent maintenance and operation of the jetliner’s

pressurization system. After the case was removed to Federal District

Court, petitioner moved for summary judgment on the ground that

respondent could not prove that her injury was caused by an

“accident” within the meaning of Article 17, the evidence indicating

that the pressurization system had operated in a normal manner.

Relying on precedent that defines the term “accident” in Article 17 as

an “unusual or unexpected” happening, the District Court granted

summary judgment to petitioner. The Court of Appeals reversed,

holding that the language, history, and policy of the Warsaw

Convention and the Montreal Agreement (a private agreement among

airlines that has been approved by the Federal Government) impose

absolute liability on airlines for injuries proximately caused by the

risks inherent in air travel; and that normal cabin pressure changes

qualify as an “accident” within the definition contained in Annex 13 to

the Convention on International Civil Aviation as meaning “an

occurrence associated with the operation of an aircraft.”

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Held: Liability under Article 17 arises only if a passenger’s

injury is caused by an unexpected or unusual event or happening that is

external to the passenger, and not where the injury results from the

passenger’s own internal reaction to the usual, normal, and expected

operation of the aircraft, in which case it has not been caused by an

accident under Article 17.

(a) The text of the Warsaw Convention suggests that the

passenger’s injury must be so caused. The difference in the language

of Article 17 imposing liability for injuries to passengers caused by an

“accident” and Article 18 imposing liability for destruction or loss of

baggage by an “occurrence,” implies that the drafters of the

Convention understood the word “accident” to mean something

different than the word “occurrence.” Moreover, Article 17 refers to an

accident which caused the passenger’s injury, and not to an accident

which is the passenger’s injury. The text thus implies that, however

“accident” is defined, it is the cause of the injury that must satisfy the

definition rather than the occurrence of the injury alone. And, since the

Warsaw Convention was drafted in French by continental jurists,

further guidance is furnished by the French legal meaning of

“accident” — when used to describe a cause of injury, rather than the

event of injury — as being a fortuitous, unexpected, unusual, or

unintended event.

(b) The above interpretation of Article 17 is consistent with

the negotiating history of the Warsaw Convention, the conduct of the

parties thereto, and the weight of precedent in foreign and American

courts.

that are “accidents” from causes that are “occurrences” requires

drawing a line that may be subject to differences as to where it should

fall, an injured passenger is only required to prove that some link in the

chain of causes was an unusual or unexpected event external to the

passenger. Enforcement of Article 17’s “accident” requirement cannot

be circumvented by reference to the Montreal Agreement. That

Agreement while requiring airlines to waive “due care” defenses under

Article 20(1) of the Warsaw Convention, did not waive Article 17’s

“accident” requirement. Nor can enforcement of Article 17 be escaped

by reference to the equation of “accident” with “occurrence” in Annex

13, which, with its corresponding Convention, expressly applies to

aircraft accident investigations and not to principles of liability to

passengers under the Warsaw Convention.

42 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Invalidity of Treaties.

The usual ground for invalidation of contracts can also invalidate a treaty:

error of fact, fraud, corruption or duress.

Article 48. Error:

1. A State may invoke an error in a treaty as invalidating its

consent to be bound by the treaty if the error relates to a fact or

situation which was assumed by that State to exist at the time when the

treaty was concluded and formed an essential basis of its consent to be

bound by the treaty.

2. Paragraph 1 shall not apply if the State in question

contributed by its own conduct to the error or if the circumstances

were such as to put that State on notice of a possible error.

3. An error relating only to the wording of the text of a

treaty does not affect its validity; Article 79 then applies.

Article 49. Fraud:

If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the

fraud as invalidating its consent to be bound by the treaty.

Article 50. Corruption of a representative of a State:

If the expression of a State’s consent to be bound by a treaty has

been procured through the corruption of its representative direcdy or

indirectly by another negotiating State, the State may invoke such

corruption as invalidating its consent to be bound by the treaty.

Article 51. Coercion of a representative of a State:

The expression of a State’s consent to be bound by a treaty

which has been procured by the coercion of its representative through

acts or threats directed against him shall be without any legal effect.

Article 52. Coercion of a State by the threat or use of force:

A treaty is void if its conclusion has been procured by the threat

or use of force in violation of the principles of international law

embodied in the Charter of the United Nations.

Moreover, a violation of jus cogens invalidates a treaty:

Article 53. Treaties conflicting with a peremptory norm of

general international law (jus cogens):

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A treaty is void if, at the time of its conclusion, it conflicts with

a peremptory norm of general international law. For the purposes of

the present Convention, a peremptory norm of general international

law is a norm accepted and recognized by the international community

of States as a whole as a norm from which no derogation is permitted

and which can be modified only by a subsequent norm of general

international law having the same character.

Note, however, that the definition quoted here is based on the legal effect of

the rule and not on its intrinsic nature. It seems to say that the rule is jus cogens

because no derogation from it is permitted. However, what jus cogens really means

is that no derogation is allowed because it is jus cogens. It is the intrinsic nature of

the rule that disallows derogation.

What are the rules considered to be jus cogens ?

While there is wide acceptance of the existence of jus cogens, there is wide

dispute as to what principles rank as jus cogens. A 1966 Report of the International

Law Commission said that there were suggestions to specify what these were.

Some examples given were: (a) a treaty contemplating an unlawful use of force

contrary to the provisions of the Charter; (b) a treaty contemplating the performance

of any other act criminal under international law; (c) a treaty contemplating or conniving towards the commission of acts such as trade in slaves, piracy, or genocide.

But the Commission decided not to stipulate a list of jus cogens rules for fear of

being misunderstood and for fear of prolonged debate.

A state, however, can lose the right to assert the invalidity of a treaty. The

following rules apply:

Article 45. Loss of a right to invoke a ground for invalidating,

terminating, withdrawing from or suspending the operation of a treaty:

A State may no longer invoke a ground for invalidating,

terminating, withdrawing from or suspending the operation of a treaty

under Articles 46 to 50 or Articles 60 and 62 if, after becoming aware

of the facts:

(a) it shall have expressly agreed that the treaty is valid or

remains in force or continues in operation, as the case may be; or

44 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

(b) it must by reason of its conduct be considered as having

acquiesced in the validity of the treaty or in its maintenance in force or

in operation, as the case may be.

A state, moreover, with limited exception, may not plead its municipal law as a

ground for invalidating a treaty that has been entered.

Article 46. Provisions of internal law regarding competence to

conclude treaties:

1. A State may not invoke the fact that its consent to be

bound by a treaty has been expressed in violation of a provision of its

internal law regarding competence to conclude treaties as invalidating

its consent unless that violation was manifest and concerned a rule of

its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident

to any State conducting itself in the matter in accordance with normal

practice and in good faith.

Article 46. Provisions of internal law regarding competence to

conclude treaties:

1. A State may not invoke the fact that its consent to be

bound by a treaty has been expressed in violation of a provision of its

internal law regarding competence to conclude treaties as invalidating

its consent unless that violation was manifest and concerned a rule of

its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident

to any State conducting itself in the matter in accordance with normal

practice and in good faith.

Article 47. Specific restrictions on authority to express the

consent of a State:

If the authority of a representative to express the consent of a

State to be bound by a particular treaty has been made subject to a

specific restriction, his omission to observe that restriction may not be

invoked as invalidating the consent expressed by him unless the

restriction was notified to the other negotiating States prior to his

expressing such consent.

Article 47 is an example of manifest violation.

Amendment and Modification of Treaties.

A distinction is made between amendment and modification of a treaty.

Amendment is a formal revision done with the participation, at

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least in its initial stage, by all the parties to the treaty. Modification, on the other

hand, involves only some of the parties.

The general rule on amendments, found in Article 39, is that a “treaty may be

amended by agreement of the parties.” The procedure that is followed is the same

as that for the formation of treaties.

The process is simple enough with regard to bilateral treaties. In recognition

of the fact that it is not easy to obtain the consent of all in multilateral treaties,

Article 40 provides for the possibility of amendments which will affect only some

states but only after all parties have been given the opportunity to consider the

proposed amendments. Article 41, for its part, allows for modification of a treaty by

two or more of the parties.

Amendment

Article 40. Amendment of multilateral treaties:

1. Unless the treaty otherwise provides, the amendment of

multilateral treaties shall be governed by the following paragraphs.

2. A

ny proposal to amend a multilateral treaty as between all the parties

must be notified to all the contracting States, each one of which shall

have the right to take part in:

(a) the decision as to the action to be taken in regard to

such proposal; (b) the negotiation and conclusion of any

agreement for the amendment of the treaty.

3. Every State entitled to become a party to the treaty shall

also be entitled to become a party to the treaty as amended.

4. The amending agreement does not bind any State already

a party to the treaty which does not become a party to the amending

agreement; Article 30, paragraph 4(b), applies in relation to such State.

5. Any State which becomes a party to the treaty after the

entry into force of the amending agreement shall, failing an expression

of a different intention by that State:

(a) be considered as a party to the treaty as amended;

and (b) be considered as a party to the unamended treaty in

relation to any party to the treaty not bound by the amending

agreement.

46 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Modification

Article 41. Agreements to modify multilateral treaties between

certain of the parties only —

1. Two or more of the parties to a multilateral treaty may

conclude an agreement to modify the treaty as between themselves

alone if:

(a) the possibility of such a modification is provided

for by the treaty ; or (b) the modification in question is not

prohibited by the treaty and:

(i) does not affect the enjoyment by the other

parties of their rights under the treaty or the performance

of their obligations; (ii) does not relate to a provision,

derogation from which is incompatible with the effective

execution of the object and purpose of the treaty as a

whole.

2. Unles

s in a case falling under paragraph 1(a) the treaty

otherwise provides, the parties in question shall notify the other

parties of their intention to conclude the agreement and of the

modification to the treaty for which it provides.

Termination of Treaties.

A treaty may be terminated or suspended according to the terms of the treaty

or with the consent of the parties. A treaty with a definite period may also expire. It

may also end when the purpose for the treaty has already been achieved. But a mere

change of government or severance of diplomatic relations does not terminate or

suspend a treaty.

Three other important modes of terminating a treaty are material breach,

impossibility of performance and change of fundamental conditions (rebus sic

stantibus).

Material breach

Article 60. Termination or suspension of the operation of a

treaty as a consequence of its breach:

1. A material breach of a bilateral treaty by one of the

parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

2. A material breach of a multilateral treaty by one of the

parties entitles:

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(a) the other parties by unanimous agreement to

suspend the operation of the treaty in whole or in part or to

terminate it either:

(i) in the relations between themselves and

the defaulting State, or

(ii) as between all the parties;

(b) a party specially affected by the breach to invoke it

as a ground for suspending the operation of the treaty in whole

or in part in the relations between itself and the defaulting State;

the breach as a ground for suspending the operation of the treaty

in whole or in part with respect to itself if the treaty is of such a

character that a material breach of its provisions by one party

radically changes the position of every party with respect to the

further performance of its obligations under the treaty.

3. A material breach of a treaty, for the purposes of this

article, consists in:

(a) a repudiation of the treaty not sanctioned by the

present Convention; or

(b) the violation of a provision essential to the

accomplishment of the object or purpose of the treaty.

4. The foregoing paragraphs are without prejudice to any

provision in the treaty applicable in the event of a breach.

5. Paragraphs 1 to 3 do not apply to provisions relating to

the protection of the human person contained in treaties of a

humanitarian character, in particular to provisions prohibiting any

form of reprisals against persons protected by such treaties.

Supervening impossibility of performance

Article 61. Supervening impossibility of performance:

1. A party may invoke the impossibility of performing a

treaty as a ground for terminating or withdrawing from it if the

impossibility results from the permanent disappearance or destruction

of an object indispensable for the execution of the treaty. If the

impossibility is temporary, it may be invoked only as a ground for

suspending the operation of the treaty.

48 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

2. Impossibility of performance may not be invoked by a

party as a ground for terminating, withdrawing from or suspending the

operation of a treaty if the impossibility is the result of a breach by that

party either of an obligation under the treaty or of any other

international obligation owed to any other party to the treaty.

Rebus sic stantibus

Article 62. Fundamental change of circumstances:

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a

treaty, and which was not foreseen by the parties, may not be invoked

as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an

essential basis of the consent of the parties to be bound by the

treaty; and (b) the effect of the change is radically to transform

the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be

invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or (b) if the

fundamental change is the result of a breach by the party

invoking it either of an obligation under the treaty or of any

other international obligation owed to any other party to the

treaty.

3. If, under the foregoing paragraphs, a party may invoke a

fundamental change of circumstances as a ground for terminating or

withdrawing from a treaty it may also invoke the change as a ground

for suspending the operation of the treaty.

Article 62 is a codification of the common law principle of rebus sic

stantibus. But the modem approach to it is restrictive. As the ICJ said in the

Fisheries Jurisdiction case (ICJ Reports 1973),

international law admits that a fundamental change in the

circumstances which determined the parties to accept a treaty, if it has

resulted in a radical transformation of the extent of the obligations

imposed by it, may, under certain conditions, afford the party affected

a ground for invoking the termination or suspension of the treaty.

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But the Court also added that the changes “must have increased the burden of

the obligations to be executed to the extent of rendering performance something

essentially different from the original intention.”

The following three cases illustrate how difficult it is to establish causes for

the termination of treaties:

FISHERIES JURISDICTION CASE

(UNITED KINGDOM V. ICELAND)

ICJ REP 1973 3

[The United Kingdom, as part of what was known as “the

Cod Wars,” applied to the Court claiming that the proposed

extension of Iceland’s exclusive fisheries jurisdiction from 12

miles to SO miles was a breach of an agreement between the

two states, evidenced by an Exchange of Notes in 1961. Iceland

contended that the Court had no jurisdiction to hear the case and

it also submitted that any agreement which it had with the

United Kingdom not to extend its fisheries jurisdiction, was no

longer binding due to a fundamental change of circumstances

since that agreement.

[The court decided that it did have jurisdiction. It also

considered that Art. 62 of the Vienna Convention on the Law of

Treaties represented customary international law.]

37. One of the basic requirements embodied [Article 62] is

that the change of circumstances must have been a fundamental one. In

this respect the Government of Iceland has, with regard to

developments in fishing techniques, referred ... to the increased

exploitation of the fishery resources in the seas surrounding Iceland

and to the danger of still further exploitation because of an increase in

the catching capacity of fishing fleets. The Icelandic statements recall

the exceptional dependence of that country on its fishing for its

existence and economic development.”

38. The invocation by Iceland of its ‘ vital interests ’, which

were not made the subject of an express reservation to the acceptance

of the jurisdictional obligation under the 1961 Exchange of Notes,

must be interpreted, in the context of the assertion of changed

circumstances, as an indication by Iceland of the reason why it regards

as fundamental the changes which in its view have taken place in

previously existing fishing techniques. This inter-

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

pretation would correspond to the traditional view that the changes of

circumstances which must be regarded as fundamental or vital are

those which imperil the existence or vital development of one of the

parties.

43. Moreover, in order that a change of circumstances may give

rise to a ground for invoking the termination of a treaty it is also

necessary that it should have resulted in a radical transformation of the

extent of the obligations still to be performed. The change must have

increased the burden of the obligations to be executed to the extent of

rendering the performance something essentially different from the

originally undertaken. In respect of the obligation with which the

Court is here concerned, this condition is wholly unsatisfied; the

change of circumstances alleged by Iceland cannot be said to have

transformed radically the extent of the jurisdictional obligation which

is imposed in the 1961 Exchange of Notes. The compromissory clause

enabled either of the parties to submit to the Court any dispute

between them relating to an extension of Icelandic fisheries

jurisdiction in the waters above its continental shelf beyond the 12-

mile limit. The present dispute is exactly of the character anticipated in

the compromissory clause of the Exchange of Notes. Not only has the

jurisdictional obligation not been radically transformed in its extent; it

has remained precisely what it was in 1961.

NAMIBIA CASE

ICJ REP 1971 16

[The Security Council had resolved that South Africa’s

Mandate over South-West Africa (Namibia) was terminated, but

this had been ignored by South Africa. The Security Council

then resolved, by Resolution 276 (1970), that the continued

presence of South Africa in Namibia was illegal. It sought an

advisory opinion from the Court, asking what were the legal

consequences for States of the continued presence of South

Africa in Namibia notwithstanding Resolution 276 (1970). The

Court held that South Africa was under an obligation to

withdraw its administration in Namibia. It also held that other

States where under an obligation not to recognize any acts by

South Africa’s administration in Namibia (see Chapter 5).]

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94. In examining this action of the General Assembly, it is

appropriate to have regard to the general principles of international law

regulating termination of a treaty relationship on account of breach.

For even if the mandate is viewed as having the character of an

institution, as is maintained, it depends on those international

agreements which created the system and regulated its application. As

the Court indicated in 1962 ‘this Mandate, like practically all other

similar Mandates’ was a special type of instrument composite in nature

and instituting a novel international regime. It incorporates a definite

agreement. (ICJ Rep 1962, p. 331). The Court stated conclusively in

that Judgment that the Mandate ... ‘in fact and in law, is an

international agreement having the character of a treaty or convention.’

(ICJ Rep 1962, p. 330). The rules laid down by the Vienna Convention

on the Law of Treaties concerning termination of a treaty relationship

on account of breach (adopted without a dissenting vote) may in many

respects be considered as a codification of existing customary law on

the subject. In the light of these rules, only a material breach of a treaty

justifies termination, such breach being defined as:

(a) a repudiation of the treaty not sanctioned by the present

Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. (Art. 60, para. 3)

95. General Assembly Resolution 2145 (XXI) determines that

both forms of material breach had occurred in this case. By stressing

that South Africa ‘has, in fact, disavowed the Mandate’, the General

Assembly declared in fact that it had repudiated it. The resolution in

question is therefore to be viewed as the exercise of the right to

terminate a relationship in case of a deliberate and persistent violation

of obligations which destroys the very object and purpose of that

relationship.

96. It has been contended that the Covenant of the League of

Nations did not confer on the Council of the League power to

terminate a mandate for misconduct of the mandatory and that no such

power could therefore be exercised by the United Nations, since it

could not derive from the League greater powers than the latter itself

had. For this objection to prevail it would be necessary to show that the

mandates system, as established under the League, excluded the

application of the general principle of law that a right of termination on

account of breach must be presumed to exist in respect of all treaties,

except as regards provisions relating

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

to the protection of the human person contained in treaties of a

humanitarian character (as indicated in Art. 60, para. 5, of the Vienna

Convention). The silence of a treaty as to the existence of such a right

cannot be interpreted as implying the exclusion of a right which has its

source outside the treaty, in general international law, and is dependent

on the occurrence of circumstances which are not normally envisaged

when a treaty is concluded.

101. It has been suggested that, even if the Council of the

League had possessed the power of revocation of the Mandate in an

extreme case, it could not have been exercised unilaterally but only in

co-operation with the Mandatory which had committed a serious

breach of the obligations it had undertaken. To contend, on the basis of

the principle of unanimity which applied in the League of Nations, that

in this case revocation could only take place with the concurrence of

the Mandatory, would not only run contrary to the general principle of

law governing termination on account of breach, but also postulate an

impossibility. For obvious reasons, the consent of the wrongdoers to

such a form of termination cannot be required.

DANUBE DAM CASE

(Hungary v. Slovakia)

37ILM162 (1998)

[In 1977, Hungary and Czechoslovakia concluded a

treaty to facilitate the construction of dams on the Danube

River. Hungary later suspended works due to environmental

concerns in response to which Czechoslovakia carried out

unilateral measures. Hungary then claimed the right to terminate

the treaty, at which point the dispute was submitted to the

International Court of Justice. Hungary also submitted that it

was entitled to terminate the Treaty on the ground that

Czechoslovakia had violated Articles of the Treaty by

undertaking unilateral measures, culminating in the diversion of

the Danube. Slovakia became a party to the 1977 Treaty as

successor to Czechoslovakia (see above on succession).]

100. The 1977 Treaty does not contain any provision

regarding its termination..

101. The Court will now turn to the first ground advanced by

Hungary, that of the state of necessity. In this respect, the Court

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will merely observe that, even if a state of necessity is found to exist, it

is not a ground for the termination of a treaty. It may only be invoked

to exonerate from its responsibility a State which has failed to

implement a treaty.

102. Hungary also relied on the principle of the impossibility

of performance as reflected in Article 61 ... [I]f the joint exploitation of

the investment was no longer possible, this was originally because

Hungary did not carry out most of the works for which it was

responsible; Article 61, paragraph 2, of the Vienna Convention

expressly provides that impossibility of performance may not be

invoked for the termination of a treaty by a party to that treaty when it

results from that party’s own breach of an obligation flowing from that

treaty.

104. Hungary further argued that it was entitled to invoke a

number of events which, cumulatively, would have constituted a

fundamental change of circumstances [changes of political nature, the

reduced economic viability of the Project, and the progress of

environmental knowledge and international environmental law]. The

changed circumstances advanced by Hungary are, in the Court’s view,

not of such a nature’ that their effect would radically transform the

extent of the obligations still to be performed in order to accomplish

the Project. A fundamental change of circumstances must have been

unforeseen; the existence of the circumstances must have constituted

an essential basis of the consent of the parties to be bound by the

treaty.

106. ... [I]t is only a material breach of the treaty itself, by a

State party to that treaty, which entitles the other party to rely on it as a

ground for terminating the treaty. The violation of other treaty rules or

of rules of general international law may justify the taking of certain

measures, including countermeasures, by the injured State, but it does

not constitute a ground for termination under the law of treaties.

109. ... Czechoslovakia violated the Treaty only when it

diverted the waters of the Danube into the bypass canal in October

1992. In constructing the works which would lead to the putting into

operation of [the unilateral measure], Czechoslovakia did not act

unlawfully.

In the Court’s view, therefore, the notification of termination by

Hungary on 19 May 1992 was premature.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Procedure for the Termination of Treaties

Article 65. Procedure to be followed with respect to invalidity,

termination, withdrawal from or suspension of the operation of a treaty

—

1. A party which, under the provisions of the present

Convention, invokes either a defect in its consent to be bound by a

treaty or a ground for impeaching the validity of a treaty, terminating

it, withdrawing from it or suspending its operation, must notify the

other parties of its claim. The notification shall indicate the measure

proposed to be taken with respect to the treaty and the reasons

therefor.

2. If, after the expiry of a period which, except in cases of

special urgency, shall not be less than three months after the receipt of

the notification, no party has raised any objection, the party making

the notification may carry out in the manner provided in Article 67 the

measure which it has proposed.

3. If, however, objection has been raised by any other party,

the parties shall seek a solution through the means indicated in Article

33 of the Charter of the United Nations.

4. Nothing in the foregoing paragraphs shall affect the rights

or obligations of the parties under any provisions in force binding the

parties with regard to the settlement of disputes.

5. Without prejudice to Article 45, the fact that a State has

not previously made the notification prescribed in paragraph 1 shall

not prevent it from making such notification in answer to another party

claiming performance of the treaty or alleging its violation.

Article 66. Procedures for judicial settlement, arbitration and

conciliation:

If, under paragraph 3 of Article 65, no solution has been reached

within a period of 12 months following the date on which the

objection was raised, the following procedures shall be followed:

(a) any one of the parties to a dispute concerning the

application or the interpretation of Article 53 or 64 may, by a written

application, submit it to the International Court of Justice for a

decision unless the parties by common consent agree to submit the

dispute to arbitration;

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(b) any one of the parties to a dispute concerning the

application or the interpretation of any of the other articles in Part V of

the present Convention may set in motion the procedure specified in

the Annex to the Convention by submitting a request to that effect to

the Secretary-General of the United Nations.

Article 67. Instruments for declaring invalid, terminating,

withdrawing from or suspending the operation of a treaty —

1. The notification provided for under Article 65, paragraph

1 must be made in writing.

2. Any act declaring invalid, terminating, withdrawing from

or suspending the operation of a treaty pursuant to the provisions of the

treaty or of paragraphs 2 or 3 of Article 65 shall be carried out through

an instrument communicated to the other parties. If the instrument is

not signed by the Head of State, Head of Government or Minister for

Foreign Affairs, the representative of the State communicating it may

be called upon to produce full powers.

Article 68. Revocation of notifications and instruments provided

for in Articles 65 and 67:

A notification or instrument provided for in Article 65 or 67 may

be revoked at any time before it takes effect.

Authority to Terminate

While the Vienna Convention enumerates those who have the capacity to

enter into treaties, it does not say who may terminate a treaty. Logically, however,

the authority to terminate should also belong to the one who has the authority to

enter into the treaty. In the Philippines, however, as in the United States, the

authority to conclude treaties is shared between the Senate and the President. Can

the President unilaterally terminate a treaty? Goldwater v. Carter,6

discussed this

question relative to President Carter’s termination of the defense treaty with

Taiwan. No decision was reached except to say that the matter was not yet ripe for

judicial review: “The Judicial Branch should not decide issues affecting the

allocation of power between the President and Congress until the political branches

reach a constitutional impasse. Otherwise, we would encourage small groups or

even individual

‘444 U.S. 996 (1979).

56 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Members of Congress to seek judicial resolution of issues before the normal

political process has the opportunity to resolve the conflict.”

Succession to treaties.

When one state ceases to exist and is succeeded by another on the same

territory, the question arises whether the new state is bound by the commitments

made by its predecessor. This subject is taken up by the 1978 Vienna Convention

on the Succession of States with Respect to Treaties which entered into force on

November 6,1996.

The Convention follows the “clean slate” rule. Article 16 says: “A newly

independent State is not bound to maintain in force, or to become a party to, any

treaty by reason only of the fact that at the date of the succession of States the treaty

was in force in respect of the territory to which the succession of States relates.”

But a new state may agree to be bound by the treaties made by its predecessor.

The “clean slate" rule, however, does not apply to treaties affecting boundary

regimes.

Article 11. Boundary regimes

A succession of States does not as such affect: (a) a boundary

established by a treaty ; or (b) obligations and rights established by a

treaty and relating to the regime of a boundary.

Article 12. Other territorial regimes

1. A succession of States does not as such affect: (a)

obligations relating to the use of any territory, or to restrictions upon

its use, established by a treaty for the benefit of any territory of a

foreign State and considered as attaching to the territories in question;

(b) rights established by a treaty for the benefit of any territory and

relating to the use, or to restrictions upon the use, of any territory of a

foreign State and considered as attaching to the territories in question.

2. A succession of States does not as such affect: (a)

obligations relating to the use of any territory, or to restrictions upon

its use, established by a treaty for the benefit of a group of States or of

all States and considered as attaching to that territory;

(b) rights established by a treaty for the benefit of a group of States or

of all States and relating to the use of any territory, or

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THE LAW OF TREATIES

to restrictions upon its use, and considered as attaching to that territory.

3. The provisions of the present article do not apply to treaty

obligations of the predecessor State providing for the establishment of

foreign military bases on the territory to which the succession of States

relates.

Chapter 4

INTERNATIONAL LAW AND MUNICIPAL LAW

Dualism vs. Monism.

When a domestic court is confronted with a problem and one of the opposing

parties relies on municipal law as the proper solution and the other party claims that

the problem should be solved by international law, what is the court to do? In other

words, when there is conflict between international law and domestic law, which is

to prevail?

There are varying theories which try to answer the question. The dualist or

pluralist theory holds that international law and municipal law are essentially

different from each other. They differ as to source. Municipal law is a product of

local custom or of legislation whereas the sources of international law are treaties

and custom grown among states. They differ as regards the relations they regulate.

Municipal law regulates relations between individual persons under the state

whereas international law regulates relations between states, They also differ

regarding their substance. Municipal law is a law of the sovereign over individuals

whereas international law is a law between sovereign states.

For the dualists, when international law and municipal law conflict,

municipal law must prevail. The dualists are positivists with a strong emphasis on

state sovereignty.

Opposite to the dualist theory is the Monistic Theory or Monism. Under this

theory, international law and domestic law belong to only one system of law.

However, there are two monist theories. One theory holds that municipal law

subsumes and is superior to international law, and a second theory, supported by

Kelsen, holds that international law is superior to domestic law. The superiority of

international law is seen as flowing from a deep suspicion of local sovereigns and

from the conviction that international law can imbue the domestic order with a

sense of moral purpose.

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INTERNATIONAL LAW AND MUNICIPAL LAW

Municipal Law in International Law.

At present the prevailing practice accepts dualism at least in its postulate that

there are two legal systems. There are prevailing provisions in treaties which

recognize dualism. Thus, Article 27 of the Vienna Convention on the Law of

Treaties says, “A party may not invoke the provisions of its internal law as

justification for its failure to perform a treaty.” Article 13 of the Declaration of

Rights and Duties of States adopted by the International Law Commission in 1949

provides: “Every State has the duty to cany out in good faith its obligations arising

from treaties and other sources of international law, and it may not invoke

provisions in its constitution or its laws as an excuse for failure to perform this

duty.” This follows the dualist tradition and blocks domestic law from entry into the

international arena. Thus, a state which has violated a provision of international law

cannot justify itself by recourse to its domestic law. Moreover, a state which has

entered into an international agreement must modify its law to make it conform to

the agreement. In Exchange of Greek and Turkish Population Case,' the Court

adverted to “a principle which is self-evident according to which a state which has

contracted a valid international obligation is bound to make in its legislation such

modifications as may be necessary to ensure the fulfillment of the obligations

undertaken.”

But even in dualism, the two systems are not completely separated. Thus,

Article 38 recognizes the common teachings of domestic law as part of

international law. Barcelona Traction Case2

said:

If the Court were to decide the case in disregard of the relevant

institutions of municipal law, it would without justification, invite

serious legal difficulties. It would lose touch with reality.... It is to

rules generally accepted by municipal systems,... and not to the

municipal law of a particular State, that international law refers.

For a situation, moreover, where the court must decide a dispute which turns

not upon international law but upon domestic law, as in the Brazilian Loans Case3

the Court stated what it must do: “Once the Court has arrived at the conclusion that

it is necessary to apply the

'Advisory Opinion PCU

[1964] ICJ Rep.

Trance v. Brazil, PCU

60 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

municipal law of a particular country, there seems to be no doubt that it must seek

to apply it as it would be applied in that country....”

International Law in Domestic Law.

Dualism also rules when it comes to entry of international law into the

domestic sphere. International law, unless it is made part of the domestic system,

has no role in the settlement of domestic conflicts.

How does international law become part of domestic law for “dualists”? In

this regard, there are two theories. The first is the doctrine of transformation. This

is based on a strict dualist approach. Since the two systems are distinct and operate

separately, for international law to become part of domestic law it must be

expressly and specifically transformed into domestic law through the appropriate

constitutional machinery such as an act of Congress or Parliament. This doctrine

flows by analogy from what is applicable to treaties. Treaties do not become part of

the law of a state unless it is consented to by the state.

The other theory is the doctrine of incorporation. Blackstone expressed this

in his Commentary when he said that:

the law of nations, wherever any question arises which is properly

the object of its jurisdiction, is here adopted in its full extent by the

common law, and it is held to be part of the law of the land.

What does Philippine law follow? In the case of treaties as international law,

they become part of the law of the land when concurred in by the Senate in

accordance with Article VII, Section 21 of the Constitution which sets down the

mechanism for transforming a treaty into binding municipal law. With regard to

customary law and treaties which have become customary law, by saying that the

Philippines “adopts the generally accepted principles of international law as part of

the law of the land,” the Constitution manifests its adherence to the “dualist” theory

and at the same time adopts the incorporation theory and thereby makes

international law part of domestic law. This provision makes the Philippines one of

the states which make a specific declaration that international law has the force also

of domestic law.4

International law

Similar provisions are found in the Austrian Constitution, Article 9: “The generally recognized rules

of international law shall be considered as component parts of the Federal Law,” and in Article 25 of the

Constitution of the Federal Republic of Germany: “The general rules of public international law are an integral

part of federal law.”

CHAPTER 4 61

INTERNATIONAL LAW AND MUNICIPAL LAW

therefore can be used by Philippine courts to settle domestic disputes in much the

same way that they would use the Civil Code or the Penal Code and other laws

passed by Congress.

What elements of international law become part of Philippine law by

incorporation through Article II, Section 2? Since treaties become apart of

Philippine law only by ratification, the principle of incorporation applies only to

customary law and to treaties which have become part of customary law. This

distinction, however, is sometimes blurred in some Philippine Supreme Court

decisions.5

There have been occasions when the Supreme Court made use of

international law to settle domestic problems. In Mejojfv. Director of Prisons,6

alien of Russian descent who had been detained pending execution of the order of

deportation was ordered released on bail when after two years the deportation order

could not be carried out because no ship or country would take him. The Court said

in part:7

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines

“adopts the generally accepted principles of international law as part of

the law of the Nation.” And in a resolution entitled “Universal

Declaration of Human Rights” and approved by the General Assembly

of the United Nations of which the Philippines is a member, at its

plenary meeting on December 10, 1948, the right to life and liberty

and all other fundamental rights as applied to all human beings were

proclaimed. It was there resolved that “All human beings are bom free

and equal in degree and rights”

(Art. 1); that “Everyone is entitled to all the rights and freedom set

forth in this Declaration, without distinction of any kind, such as race,

color, sex, language, religion, political or other opinion, nationality or

social origin, property, birth, or other status” (Art.

2)\ that “Everyone has the right to an effective remedy by the

competent nationals for acts violating the fundamental rights granted

him by the Constitution or by law” (Art. 8); that “No one shall be

subjected to arbitrary arrest, detention or exile” (Art. 9); etc.

'See Aloysius Llamzon, THE GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW: TOWARDS A STRUCTURALLY CONSISTENT USE OF CUSTOMARY

INTERNATIONAL LAW IN PHIUPPINE COURTS, JD Thesis

submitted to the Ateneo de Manila School of Law, 2002.

<90 Phil. 70 (1951).

Vd. at 73-4.

62 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Earlier, in Kuroda v. Jalandoni,

the Court said that the provision “is not

confined to the recognition of rules and principles of international law as contained

in treaties to which our government may have been or shall be a signatory.” Thus,

although the Philippines was not a signatory to the Hague Convention and became

a signatory to the Geneva Convention only in 1947, the Court held that a Philippine

Military Commission had jurisdiction over war crimes committed in violation of

the two conventions prior to 1947. Apparently, the Court considered jurisdiction

over war crimes part of customary law.

In Agustin v. Edu,9

a case involving a presidential Letter of Instruction

prescribing the use of early warning devices (EWD), the Court said that the

constitutional provision “possesses relevance.” The court pointed out that the 1968

Vienna Convention on Road Signs and Signals had been ratified by the Philippine

government under Presidential Decree No. 207. “It is not for this country to

repudiate a commitment to which it had pledged its word. The concept Pacta sunt

servanda stands in the way of such an attitude, which is, moreover, at war with the

principle of international morality.”10 Strictly speaking, therefore, the incorporation

here was done not via the Constitution but by ratification.

Likewise, the international duty of protecting foreign embassies was

recognized in JBL. Reyes v. Bagatsing." The doctrine of immunity from suit of a

foreign state is likewise a principle of international law whose acceptance in this

jurisdiction has been established in a long line of cases starting with Raquiza v.

Bradford.'2

It was summarized and reaffirmed in Baer v. TizonP

Conflict between International Law and Domestic Law: International Rule

This incorporation or reception of international law into domestic Philippine

law can become a problem when international law, whether customary or

conventional, comes into conflict with domestic law, whether constitutional or

statutory. Which law should prevail? It will

83 Phil. 171,178(1949).

88 SCRA 195,213 (February

'°Id.

"G.R. No. 65366, October 25,1983.

I275 Phil. 50 (1945).

”57 SCRA 1,6-8 (May 3,1974).

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INTERNATIONAL LAW AND MUNICIPAL LAW

depend on whether the case goes to a domestic court or to an international tribunal.

It is an established principle that, before an international tribunal, a state may not

plead its own law as an excuse for failure to comply with international law. “Every

State has the duty to carry out in good faith its obligations arising from treaties and

other sources of international law, and it may not invoke provisions in its

constitutions or its laws as an excuse for failure to perform this duty.”14 In the advisory opinion on Exchange of Greek and Turkish Populations Case,'5

the Court

said: “this clause ... merely lays stress on a principle which is self-evident,

according to which a State which has contracted valid international obligations is

bound to make in its legislation such modifications as may be necessary to ensure

the fulfillment of the obligations undertaken.”

This principle of the Vienna Convention has long been established and is

generally recognized. But an exception is made to the rule by Article 46 of the same

Convention in cases where the constitutional “violation was manifest and

concerned a rule of its internal law of fundamental importance.” The same article

defines the violation as “manifest if it would be objectively evident to any State

conducting itself in the matter in accordance with normal practice and in good

faith.” If the treaty that is declared unconstitutional, however, does not come under

the exception, the treaty can be ignored domestically but only at the risk of

international repercussions before an international court.

Conflict between International Law and Domestic Law: Municipal Rule

The situation, however, is different when the conflict comes before a

domestic court. Domestic courts are bound to apply the local law. In international

practice, however, courts are very rarely confronted with such a problem. The

reason for this is that courts are generally able to give to domestic law a

construction which does not conflict with international law. But should conflict

arise, what rule should be followed and what are the possible consequences?

“Article 13, Declaration of Rights and Duties adopted by the International Law Commis

sion in 1949.

,s[1925] PCIJ, Ser. B,No. 10.

64 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Conflict may arise between a state’s Constitution and international law.

Conceivably, however, there should be no such conflict between the Philippine

Constitution or statutes on the one hand and customary international law on the

other because the Constitution when formulated accepted the general principles of

international law as part of the law of the land. Problems can more likely arise

between treaties on the one hand and the Constitution or statutes on the other.

Should a conflict arise between an international agreement and the

Constitution, the treaty would not be valid and operative as domestic law. The

Constitution, in Article VIII, Section 5, 2(a) explicitly recognizes the power of the

Supreme Court to declare a treaty unconstitutional. This does not mean, however,

that a treaty that has been declared unconstitutional loses its character as

international law. Under the “dualist” theory, which the Constitution accepts, the

unconstitutionality of a treaty is purely a domestic matter. As Article 27 of the

Vienna Convention on the Law of Treaties says, “A party may not invoke the

provisions of its internal law as justification for its failure to perform a treaty.”

Of interest here is the manner in which the Supreme Court handled the

challenge to the Senate’s ratification of the GATT Treaty in Tanada v. Angara}6

The petitioners in the case argued that the “letter, spirit and intent” of the

Constitution mandating “economic nationalism” were violated by the “parity

provisions” and “national treatment clauses” scattered in various parts not only of

the WTO Agreement and its annexes but also in the Ministerial Decisions and

Declarations and in the Understanding on Commitments in Financial Services. The

petitioners had relied on the nationalistic provisions of Articles II and XII of the

Constitution. In reply, the Court said:

By its very title, Article II of the Constitution is a “declaration

of principles and state policies.” The counterpart of this article in the

1935 Constitution is called the “basic political creed of the nation” by

Dean Vicente Sinco. These principles in Article II are not intended to

be self-executing principles ready for enforcement through the courts.

They are used by the judiciary as aids or as guides in the exercise of its

power of judicial review, and by the legislature in its enactment of

laws. As held in the leading case of

l6G.R. No. 118295, May 2,1997.

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INTERNATIONAL LAW AND MUNICIPAL LAW

Kilosbayan, Incorporated vs. Morato, the principles and state policies

enumerated in Article II and some sections of Article XII are not “selfexecuting provisions, the disregard of which can give rise to a cause of

action in the courts. They do not embody judicially enforceable

constitutional rights but guidelines for legislation.”

All told, while the Constitution indeed mandates a bias in favor

of Filipino goods, services, labor and enterprises, at the same time, it

recognizes the need for business exchange with the rest of the world

on the bases of equality and reciprocity and limits protection of

Filipino enterprises only against foreign competition and trade

practices that are unfair. In other words, the Constitution did not intend

to pursue an isolationist policy. It did not shut out foreign investments,

goods and services in the development of the Philippine economy.

While the Constitution does not encourage the unlimited entry of

foreign goods, services and investments into the country, it does not

prohibit them either. In fact, it allows an exchange on the basis of

equality and reciprocity, frowning only on foreign competition that is

unfair.

The position of the Court in Tafiada is a retreat from an the earlier case of

Manila Prince Hotel v. Government Service Insurance System17 where the Court

said that the command of Article XII, Section 10 was mandatory and selfexecutory. Section 10 says: “In the grant of rights, privileges, and concessions

covering the national economy and patrimony, the State shall give preference to

qualified Filipinos.” In awarding a contract to a Filipino corporation which had a

lower bid than that of a Malaysian, the Court said that the command of Section

12 “is a mandatory, positive command which is complete in itself and which needs

no further guidelines or implementing laws or rules for its enforcement. From its

very words, the provision does not require any legislation to put it in operation. It is

per se judicially enforceable.” The Court, however, attempted to justify its new

position by saying:

It is true that in the recent case of Manila Prince Hotel vs.

Government Service Insurance System, et al„ this Court held that

“Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs

no further guidelines or implementing laws or rules for its

l7GJt. No. 122156, February 3,1997.

66 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

enforcement. From its very words, the provision does not require any

legislation to put it in operation. It is per se judicially enforceable.”

However, as the constitutional provision itself states, it is enforceable

only in regard to “the grants of rights, privileges and concessions

covering national economy and patrimony” and not to every aspect of

trade and commerce. It refers to exceptions rather than the rule. The

issue here is not whether this paragraph of Sec.

10 of Art. XII is self-executing or not. Rather, the issue is whether, as

a rule, there are enough balancing provisions in the Constitution to

allow the Senate to ratify the Philippine concurrence in the WTO

Agreement. And we hold that there are.

The municipal rule for settling a conflict between international agreement

and legislation is different. The rule followed in the United States is that treaties

and statutes are equal in rank and that, since neither is superior to the other, the rule

followed is that as between an earlier treaty and a later law, the later one prevails.

As the United States Supreme Court said: “This Court has also repeatedly taken the

position that an Act of Congress ... is on a full parity with a treaty, and that when a

statute which is subsequent in time is inconsistent with a treaty, the statute to the

extent of conflict renders the treaty null.”18 The same rule applies in the Philippines.

But again, the rule applies only in the domestic sphere. The treaty, even if contrary

to later statute, remains as international law; while an international tribunal would

not have the power to reverse the nullification of the treaty in domestic law, it can

take appropriate action in favor of an aggrieved state.

Illustrative cases

HEAD MONEY CASES EDYE V. ROBERTSON 112 U^. 580 (1884)

A treaty is primarily a compact between independent nations.

It depends for the enforcement of its provisions on the interest and the

honor of the governments which are parties to it. If these fail, its

infraction becomes the subject of international negotiations and

reclamations, so far as the injured party chooses to seek redress, which

may, in the end, be enforced by actual war. It is obvious that,

18Reid v. Covert, 354 U.S. 1,18 (1957).

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with all this, the judicial courts have nothing to do, and can give no

redress.

But a treaty may also contain provisions which confer certain

rights upon the citizens or subjects of one of the nations residing in the

territorial limits of the other, which partake of the nature of municipal

law and which are capable of enforcement as between private parties in

the courts of the country. An illustration of this character is found in

treaties which regulate the mutual rights of citizens and subjects of the

contracting nations in regard to rights of property by descent or

inheritance when the individuals concerned are aliens. The

Constitution of the United States places such provisions as these in the

same category as other laws of Congress by its declaration that this

Constitution and the laws made in pursuance thereof, and all treaties

made or which shall be made under authority of the United States,

shall be the supreme law of the land.

A treaty, then, is a law of the land; it becomes an an act of

Congress whenever its provisions prescribe a rule by which the rights

of the private citizen or subject may be determined. And when such

rights are of a nature to be enforced in a court of justice, that court

resorts to the treaty for a rule of decision for the case before it as it

would to a statute.

But, even in this aspect of the case, there is nothing in this law

which makes it irrepealable or unchangeable. The Constitution gives it

no superiority over an act of Congress in this respect, which may be

repealed or modified by an act of a later date. Nor is there anything in

its essential character, or in the branches of the government by which

the treaty is made, which gives it this superior sanctity.

A treaty is made by the President and the Senate. Statutes are

made by the President, the Senate, and the House of Representatives.

The addition of the latter body to the other two in making a law

certainly does not render it less entitled to respect in the matter of its

repeal or modification than a treaty made by the other two. If there be

any difference in this regard, it would seem to be in favor of an act in

which all three of the bodies participate. And such is, in fact, the case

in a declaration of war, which must be made by Congress and which,

when made, usually suspends or destroys existing treaties between the

nations thus at war.

In short, we are of opinion that, so far as a treaty made by the

United States with any foreign nation can become the subject

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

of judicial cognizance in the courts of this country, it is subject to such

acts as Congress may pass for its enforcement, modification, or repeal.

WHITNEY v. ROBERTSON, 124 US. 190 (1888) FIELD, J.

The plaintiffs are merchants, doing business in the city of New

York; and in August, 1882, they imported a large quantity of

‘centrifugal and molasses sugars,’ the produce and manufacture of the

island of San Domingo. These goods were similar in kind to sugars

produced in the Hawaiian Islands, which are admitted free of duty

under the treaty with the king of those islands, and the act of congress

passed to carry the treaty into effect. They were duly entered at the

custom-house at the port of New York; the plaintiffs claiming that, by

the treaty with the republic of San Domingo, the goods should be

admitted on the same terms, that is, free of duty, as similar articles, the

produce and manufacture of the Hawaiian islands. The defendant, who

was at the time collector of the port, refused to allow this claim, treated

the goods as dutiable articles under the acts of Congress....

The plaintiffs appealed from the collector’s decision to the

secretary of the treasury, by whom the appeal was denied. They then

paid, under protest, the duties exacted, and brought the present action

to recover the amount.... The defendant demurred to the complaint, the

demurrer was sustained, and final judgment was entered in his favor;

to review which the case is brought here.

... [t]he act of Congress under which the duties were collected,

authorized their exaction. It is of general application, making no

exception in favor of goods of any country. It was passed after the

treaty with the Dominican republic, and, if there be any conflict

between the stipulations of the treaty and the requirements of the law,

the latter must control.

A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the

infraction of its provisions a remedy must be sought by the injured

party through reclamations upon the other. When the stipulations are

not self-executing, they can only be enforced pursuant to legislation to

carry them into effect, and such legislation is as much subject to

modification and repeal by congress as legislation

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INTERNATIONAL LAW AND MUNICIPAL LAW

upon any other subject. If the treaty contains stipulations which are

self-executing, that is, require no legislation to make them operative, to

that extent they have the force and effect of a legislative enactment.

Congress may modify such provisions, so far as they bind the United

States, or supersede them altogether. By the constitution, a treaty is

placed on the same footing, and made of like obligation, with an act of

legislation. Both are declared by that instrument to be the supreme law

of the land, and no superior efficacy is given to either over the other.

When the two relate to the same subject, the courts will always

endeavor to construe them so as to give effect to both, if that can be

done without violating the language of either; but, if the two are

inconsistent, the one last in date will control the other: provided,

always, the stipulation of the treaty on the subject is self-executing.

If the country with which the treaty is made is dissatisfied with

the action of the legislative department, it may present its complaint to

the executive head of the government, and take such other measures as

it may deem essential for the protection of its interests. The courts can

afford no redress. Whether the complaining nation has just cause of

complaint, or our country was justified in its legislation, are not

matters for judicial cognizance.

In Taylor v. Morton, 2 Curt. 454, 459, this subject was very

elaborately considered at the circuit by Mr. Justice CURTIS, of this

court, and he held that whether a treaty with a foreign sovereign had

been violated by him; whether the consideration of a particular

stipulation of the treaty had been voluntarily withdrawn by one party,

so that it was no longer obligatory on the other; whether the views and

acts of a foreign sovereign had given just occasion to the legislative

department of our government to withhold the execution of a promise

contained in a treaty, or to act in direct contravention of such promise,

were not judicial questions; that the power to determine these matters

had not been confided to the judiciary, which has no suitable means to

exercise it, but to the executive and legislative departments of our

government; and that they belong to diplomacy and legislation, and not

to the administration of the laws. And he justly observed, as a

necessary consequence of these views, that, if the power to determine

these matters is vested in congress, it is wholly immaterial to inquire

whether by the act assailed it has departed from the treaty or not, or

whether such departure was by accident or design, and, if the latter,

whether the reasons were good or bad. In these views we fully concur.

It follows, therefore, that, when a law is

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

clear in its provisions, its validity cannot be assailed before the courts

for want of conformity to stipulations of a previous treaty not already

executed. Considerations of that character belong to another

department of the government. The duty of the courts is to construe

and give effect to the latest expression of the sovereign will. In HeadMoney Cases, 112 US. 580, 5 Sup. Ct. Rep. 247, it was objected to an

act of congress that it violated provisions contained in treaties with

foreign nations, but the court replied that, so far as the provisions of

the act were in conflict with any treaty, they must prevail in all the

courts of the country; and, after a full and elaborate consideration of

the subject, it held that, ‘so far as a treaty made by the United States

with any foreign nation can be the subject of judicial cognizance in the

courts of this country, it is subject to such acts as congress may pass

for its enforcement, modification, or repeal.’

Chapter 5

SUBJECTS OF INTERNATIONAL LAW: STATES

Subjects of International Law.

Subjects of international law are entities endowed with rights and obligations

in the international order and possessing the capacity to take certain kinds of action

on the international plane. In other words, they are those who have international

personality. They are actors in the international legal system and are distinct from

objects of international law. Objects of international law are those who indirectly

have rights under or are beneficiaries of international law through subjects of

international law.

Not all subjects of international law enjoy the same rights and obligations.

States remain the predominant actors, but other actors have come to be recognized.

In asserting the international personality of the United Nations, for instance, the

Reparations Case1

had this to say:

The subjects of law in any legal system are not necessarily

identical in their nature or in the extent of their rights, and their nature

depends upon the needs of the community. Throughout its history, the

development of international law has been influenced by the

requirements of international life, and the progressive increase in the

collective activities of States has already given rise to instances of

action upon the international plane by certain entities which are not

States....

States enjoy the fullest personality in international law. They will be the

concern of this chapter. Other subjects will be treated in the following chapter.

'[1949] ICJ Rep.

72 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

States: Commencement of their Existence.

There are various situations when the question of statehood arises. Examples

are when a portion of a territory has seceded, or when there is foreign control over

the affairs of an entity which claims to be a state, or when states have formed a

union but continue to retain some autonomy, and when individual members of a

federation claim statehood.

The traditional statement of the characteristics which make an entity a state

is found in the Montevideo Convention of 1933 on Rights and Duties of States:

“The state as a person of international law should possess the following

qualifications: (a) a permanent population; (b) a defined territory; (c) government;

(d) the capacity to enter into relations with other States.” Hence, the definition of

the concept “state” which has found currency among Philippine writers is this: it is

a community of persons more or less numerous, permanently occupying a definite

portion of territory, independent of external control, and possessing an organized

government to which the great body of inhabitants render habitual obedience.

Commentators, following the Montevideo Convention, break down the concept

into four elements: people, territory, government, and sovereignty

People or Population

As an element of a state, “people” simply means a community of persons

sufficient in number and capable of maintaining the permanent existence of the

community and held together by a common bond of law. It is of no legal

consequence if they possess diverse racial, cultural, or economic interests. Nor is a

minimum population required.

Territory

A definite territory over which an entity exercises permanent sovereignty is

another element of a state. But as the Restatement (Third) on the Foreign Relations

Law of the United States explains: “An entity may satisfy the territorial

requirement for statehood even if its boundaries have not been finally settled, if one

or more of its boundaries are disputed, or if some of its territory is claimed by

another state. An entity does not necessarily cease to be a state even if all its

territory has been occupied by a foreign power or if it has otherwise lost control of

its territory temporarily.”2

§ 201. U.S. courts generally view the Restatement as an authoritative scholarly statement of

contemporary international law.

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SUBJECTS OF INTERNATIONAL LAW: STATES

Government

Government, as an element of a state, is defined as “that institution or

aggregate of institutions by which an independent society makes and carries out

those rules of action which are necessary to enable men to live in a social state, or

which are imposed upon the people forming that society by those who possess the

power or authority of prescribing them.”3

International law does not specify what

form a government should have. Moreover, for purposes of international law, it is

the national government that has legal personality and it is the national government

that is internationally responsible for the actions of other agencies and

instrumentalities of the state. Finally, a temporary absence of government, for

instance during an occupation by a foreign power, does not terminate the existence

of a state.

Sovereignty

Sovereignty means independence from outside control. The Montevideo

Convention expresses this in positive terms as including “the capacity to enter into

relations with other States.” This latter element of sovereignty, however, is

dependent on recognition.

An entity may in fact possess all the elements of a state but if one or more

states do not extend recognition to it, the entity would not be able to establish

relations with those states. Incidentally, although the Philippines was not yet an

independent state in 1945, it was accepted as one of the original signatories of the

United Nations Charter.

Self-determination

Sovereignty as an element of a state is related to but not identical with the

broader concept of the right of self-determination. In the post- World War II era,

there have arisen numerous new states. The impetus behind the birth of new states

is the principle of self-determination of peoples. Both the International Covenant

on Civil and Political Rights and the International Covenant on Economic, Social,

and Cultural Rights assert the principle of self determination of people in identical

language: “All peoples have the right of self-determination. By virtue of that right

they freely determine their political status and freely pursue

3U.S. v. Dorr, 2 Phil. 332, cited in Bacani v. NACOCO, 100 Phil. 468,471 (1956).

74 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

their economic, social and cultural development.” This principle has been affirmed

and reaffirmed by various documents of the United Nations, notably the

Declaration on the Granting of Independence to Colonial Countries and Peoples

(1960) and the Declaration on Principles of International Law concerning Friendly

Relations and Cooperation among States in accordance with the Charter of the

United Nations. (1970).

The various levels of claim to self-determination may be broken down into

two main categories. The first is the establishment of new states — that is, the

claim by a group within an established state to break away and form a new entity.

The second does not involve the establishment of a new state. This can simply be

claims to be free from external coercion, or the claim to overthrow effective rulers

and establish a new government, that is, the assertion of the right of revolution; or

the claim of people within an entity to be given autonomy.

The UN has used various means to give effect to self-determination:

resolutions of support for demands, sanctions for offenses against selfdetermination, helping in ascertaining the will of the people, giving rights of

participation in international fora, inquiries and reports, military force to maintain

order, formulation of criteria whether self- government exists, and technical

assistance. But international law has not recognized a right of secession from a

legitimately existing state.

Recognition of states.

When State A recognizes State B, it means that both recognize the capacity

of each other to exercise all the rights belonging to statehood. Recognition thus

means the act of acknowledging the capacity of an entity to exercise rights

belonging to statehood.

Can an entity claim to be a state before it is recognized by other states?

There are two views on this. One view, the declaratory theory, is that recognition

is merely “declaratory” of the existence of the state and that its being a state

depends upon its possession of the required elements and not upon recognition. A

recognizing state merely accepts an already existing situation. The weight of

authority favors the “declaratory view.”

The other view, the constitutive theory, is that recognition “constitutes” a

state, that is, it is what makes a state a state and confers legal

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SUBJECTS OF INTERNATIONAL LAW: STATES

personality on the entity. In effect, this merely emphasizes the point that states are

under no obligation to enter into bilateral relations. But then states may decide to

recognize an entity as a state even if it does not have all the elements of a state

found in the Montevideo Convention.

In an extended article on recent practice of states relative to recognition, the

author draws the following conclusion:4

The main conclusion to be drawn is that the question of recognition of states has become less predictable and more a matter of

political discretion as a result of recent practice. The traditional criteria

for statehood retain an uneasy existence alongside the new EC

Guidelines, which have been particularly influential in relation to the

recognition of the new states emerging from the USSR and

Yugoslavia.

The anarchic situation in Georgia led some countries to refrain

from recognizing that country in accordance with the traditional

criteria while in the case of the Republic of Bosnia and Herzegovina

the international community used recognition in an attempt to arrest

what looked like an inevitable slide into anarchy.

Issues such as the presence of foreign forces on a country’s soil

have been treated inconsistently or glossed over. This is

understandable because there are times when train timetables cannot

keep up with the march of history. A valid distinction could be made

between situations which are the remnants of the Cold War such as the

continuing presence of former Soviet troops in Germany and situations

of hostile occupation such as the hold of Belgrade-supported local

Serbian forces over large slabs of Croatia and Bosnia and

Herzegovina. Yet even in the latter case, the absence of control by the

central government over large parts of its territory did not halt

recognition. Nor has the continuing unwelcome presence of ‘Soviet’

forces in the Baltic republics detracted from their independence in

international eyes.

At the same time, the absence of foreign forces from the former

Yugoslav Republic of Macedonia (which was accomplished when the

Yugoslav People’s Army completed its withdrawal from Macedonia in

March 1992) has not led states to accept that territory as a fit subject of

recognition.

4Roland Rich, RECOGNITION OF STATES: THE COLLAPSE OF YUGOSLAVIA AND THE SOVIET UNION, 4 Eur. J Int’l L, No. 1 (1993).

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Membership of the UN has also been seen differently by

different countries insofar as a vote in favour may amount to

recognition. India decided to extend recognition before Croatia,

Slovenia and Bosnia and Herzegovina joined the UN. Sweden took the

view that, having participated in the unanimous decision of the UN

General Assembly to accept the membership of Bosnia and

Herzegovina, ‘this according to Swedish practice means that Sweden

has recognized the Republic of Bosnia and Herzegovina.’ The

Swedish view has considerable merit in that membership of the UN is

only open to states and voting in favour of a new member state’s

application would seem to imply a statement of recognition of that

new state. However, other states take a different view. Both Chile and

Sri Lanka for example, having participated in the UN General

Assembly vote admitting the Republic of Bosnia and Herzegovina,

nevertheless considered it necessary a few days later to extend

recognition on a bilateral basis.

It now seems that the ‘political realities’ have gained primacy

over the inclinations to maintain consistency by applying accepted

criteria to test the fact of statehood. This should not be seen as

necessarily a negative development. The application of the traditional

criteria as the test for statehood and therefore the rationale behind

recognition was largely amoral. How a government came to be in

effective control over its territory was, for the most part, not

considered to be a relevant factor. The adoption of conditions leading

to recognition is an attempt to introduce a greater moral dimension.

Yet the enemy of such a moral stand is inconsistency, the very factor

which the traditional criteria tried to avoid. And there can be fewer

better examples of inconsistency than the continuing refusal to

recognize the independence of the former Yugoslav Republic of

Macedonia even though it meets every criterion and every condition

but simply refuses to change its name. The ‘political realities’ in this

case seem to have more to do with internal EC politics than with the

merits of the Macedonian case.

The EC’s 12 December 1992 Edinburgh summit dealt with the

question of the former Yugoslav Republic of Macedonia but did not

advance the matter significantly. While falling short of endorsing the

line taken at the Lisbon summit in relation to recognition, the

Edinburgh summit did not really review this position and simply left

EC Foreign Ministers seized of the question. Authorities in Skopje

may have no alternative but to

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SUBJECTS OF INTERNATIONAL LAW: STATES

consider the EC position as an abdication of the leadership role

hitherto played by the EC. This could lead the government in Skopje to

the conclusion that it should seek UN membership thus by-passing the

EC altogether. In such circumstances, the issue of the effect of a vote

for membership of the UN on the question of recognition will need to

be closely considered by UN members.

Reverting to the long-running debate about whether recognition

is declaratory or constitutive, recent events seem to point towards a

trend to attempt to constitute states through the process of recognition.

Bosnia and Herzegovina is an obvious example but Ukraine can also

be seen to fit into this category.

The end of the Cold War will lead to many new situations where

peoples will not feel as constrained as in the past to attempt to exercise

their right to self-determination. In response to this phenomenon the

international community is now faced with a far more complex

problem than in the recent past. Old ideas about equating the status quo

to stability, about the unacceptability of secession, about considering

peoples only in terms of the states they live in and about the

inviolability of existing international frontiers will be re-examined.

When considering a question of recognition, states will have to ask

themselves questions about whether such an action will contribute to a

peaceful resolution of a conflict, and if the answer is in the affirmative,

the traditional criteria for statehood may well have to be finessed.

Nor should we expect this new situation to be limited to the

problems of Europe. The principles involved are universal and the new

issues to be confronted may soon be seen to be problems on a global

scale.

Recognition of Government.

Closely related to recognition of states is recognition of governments. It

means the act of acknowledging the capacity of an entity to exercise powers of

government of a state.

If a change in government in an existing state comes about through ordinary

constitutional procedure, recognition by others comes as a matter of course. The

problem is acute when a new government within a state comes into existence

through extra-constitutional means. The following are two cases involving

recognition of government:

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

THE TINOCO ARBITRATION

Great Britain v. Costa Rica (1923)

William H. Taft, Arbitrator

In January 1917, the Government of Costa Rica, under President

Alfredo Gonzalez, was overthrown by Federico Tenneco. Tenneco’s

government concluded certain contracts with British Corporations.

Tenneco retired and left the country. After Tenneco’s retirement the

old constitution was restored and a Law of Nullities was passed

annulling the contracts concluded during the Tenneco regime. Great

Britain made claims on the basis of the injuries done to its nationals

caused by the annulments. There were two preliminary questions: 1.

What was the status of the Tinoco regime in international law. 2. Was

Great Britain estopped from pursuing its claims because it never

recognized the Tinoco government either de jure or de facto.

Taft ...

But it is urged that many leading Powers refused to

recognize the Tinoco government. ... Undoubtedly, recognition

by other Powers is an important evidential factor in establishing

proof of the existence of a government in the society of nations.

The non-recognition by other nations of a government

claiming to be a national personality, is usually appropriate

evidence that it has not attained the independence and control

entitling it by international law to be classed as such. But when

recognition of a government is by such nations determined by

inquiry, not into its de facto sovereignty and complete

governmental control, but into its illegitimacy or irregularity of

origin, their non-recognition loses something of evidential

weight... [it] cannot outweigh the evidence disclosed by this

record before me as to the de facto character of Tinoco’s

government....

Second. It is ... argued on behalf of Costa Rica that the

Tinoco government cannot be considered a de facto

government, because it was not established and maintained in

accord with the constitution of Costa Rica of 1871. To hold that

a government... does not become a de facto government unless

it conforms to a previous constitution would be to hold that

within the rules of international law a revolution contrary to the

fundamental law of the existing government

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SUBJECTS OF INTERNATIONAL LAW: STATES

cannot establish a new government. This cannot be, and is

not,true....

Third. It is further objected by Costa Rica that Great Britain by

her failure to recognize the Tinoco government is estopped now to

urge claims of her subjects dependent upon the acts and

contracts of the Tinoco government Here the executive of Great

Britain takes the position that the Tinoco government which it did not

recognize, was nevertheless a de facto government that could create

rights in British subjects which it now seeks to protect. Nonrecognition may have aided the succeeding government to come into

power; but subsequent presentation of claims based on the de facto

existence of the previous government ... does not work an injury to the

succeeding government in the nature of a fraud or breach of good

faith.

UPRIGHT v. MERCURY BUSINESS MACHINES CO.

Supreme Court of New York, Appellate Division,

First Department, 1961.

13 A.D.2d 36,213 N.Y.S.2d 417

BREITEL, JUSTICE PRESIDING. Plaintiff, an individual, sues

as the assignee of a trade acceptance drawn on and accepted by

defendant in payment for business typewriters sold and delivered to it

by a foreign corporation. The trade acceptance is in the amount of $27

307.45 and was assigned to plaintiff after dishonor by defendant.

Involved on this appeal is only the legal sufficiency of the first

affirmative defense. It alleges that the foreign corporation is the

creature of the East German Government, a government not

recognized by the United States. It alleges, moreover, that such

corporation is an enterprise controlled by and that it is an arm and

instrument of such government.

On motion addressed to its sufficiency Special Term sustained

the defense. For the reasons that follow the defense should have been

stricken as legally insufficient....

A foreign government, although not recognized by the

political arm of the United States Government, may nevertheless

have de facto existence which is juridically cognizable. The acts

of such a de facto government may affect private rights and

obligations arising either as a result of activity in, or with

persons or corporations within, the

80 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

territory controlled by such de facto government. This is

traditional law. (Russian Reinsurance Co. v. Stoddard, 240 N.Y.

149, 147 N.E. 703; M. Salimoff & Co. v. Standard Oil Co., 262

N.Y. 220,186 N.E. 679, 89 ALJi. 345)

Consequences of Recognition or Non-recognition.

In a world of growing interdependence, recognition or nonrecognition of

government can have very serious consequences. A government, once recognized,

gains increased prestige and stability. The doors of funding agencies are opened,

loans are facilitated, access to foreign courts and immunity from suit are gained.

Military and financial assistance also come within reach. The absence of formal

recognition, on the other hand, bars an entity from all these benefits or, at least,

access to them may be suspended.

Recognition of a government, however, like recognition of a state involves a

highly political judgment. The United States, for instance, refused for many years

to recognize the government of the People’s Republic of China or of North Korea

not because it was not obvious that these governments had effective control of their

territory but because the United States did not wish these governments to benefit

from the legal effects of recognition.

Does admission of a government to the United Nations mean recognition by

all members? No. The recognition is only to the extent of the activities of the

organization.

While recognition of a state is not the same as recognition of government,

the two often go together in the case of new states. However, within established

states, governments come and go with no effect on recognition of the state. It

should be noted, moreover, that recognition of government does not mean approval

of the recognized government’s methods. Nor do diplomatic relations connote

approval; they are intended merely to secure a convenience.

An illustration of the political nature of recognition may be found in United

States history. In the 19th century, Daniel Webster said that nations have the

discretion to govern themselves and to choose which agency to represent them. In

1792, after the French Revolution, Jefferson said that the US would deal with any

government effectively in power.

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SUBJECTS OF INTERNATIONAL LAW: STATES

In subsequent years, however, the US required more than just effective

control by the incoming government. Woodrow Wilson said that the US should not

deal with governments set up in violation of their constitution. After the

Communists took over in China in 1949, Truman said that the US would not deal

with a government imposed by a foreign power. When Chinese troops entered the

Korean war, Dulles said that the policy of the United States was to recognize de

facto governments when (1) they control government, (2) are not confronted with

active resistance in the country, and (3) are willing to live up to international

obligations.

When is recognition terminated? The answer is fairly simple: recognition of

a regime is terminated when another regime is recognized. For as long as a state

continues to meet the qualifications of statehood, its status as a state cannot be

“derecognized.” When the United States recognized the government of China in

1979, it derecognized the government of Taiwan, but continued with commercial,

cultural, and other non-governmental relationships.

Succession of States.

Succession or Continuity

States do not last forever. The issue of state succession can arise in different

circumstances. Existing sovereignties can disappear under different circumstances.

New political sovereigns may arise as the result of decolonization, dismemberment

of an existing state, secession, annexation and merger. In each of these cases an

existing sovereignty disappears either in whole or in part and a new one arises thus

giving rise to questions of succession to rights and obligations.

The international law and practice of states on this subject have been

confused. Some on one extreme suggest that the new state succeeds to no rights or

obligations of the predecessor state but begins with a tabula rasa. Others on

another extreme hold that the successor state assumes all the obligations and enjoys

all the rights of the predecessor. Others hold that succession has varying effects on

state rights and duties.

The issue of continuity is also particularly problematic. When a new state

arises, what is its relation to the predecessor state? Is it completely distinct from the

predecessor state or is it a continuation of the

82 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

predecessor state? There are cases when there are no problems. For instance, the

present India is a continuation of the former British India while Pakistan is a

completely new state. But there are also very problematic situations. Take for

instance the Soviet Union and the Yugoslavia.

After the USSR was dissolved, Russia claimed to be a continuation of the

USSR and therefore entitled to membership not only in the UN but also in the

Security Council. Russia’s claim was supported by the Decision of the Council of

Heads of State of the Commonwealth of the Independent States on December 21,

1991. But the Baltic states of Estonia, Latvia and Lithuania, which had been

annexed by the Soviet Union in 1940, declared their independence. The European

Community adopted a resolution welcoming the restoration of the sovereignty of

the Baltic states in 1991. So did the United States.

The problem of Yugoslavia, however, is more complicated. The mother state

was the Socialist Federal Republic of Yugoslavia. Over a period of several months,

this state collapsed and the component republics declared independence. Majorities

in Bosnia and Herzegovina voted for independence in a referendum and this was

recognized by the Arbitration Commission of Yugoslavia. The European

Community recognized Slovenia, Croatia and Bosnia and these were admitted to

the United Nations. Serbia and Montenegro, however, formed a new state called the

Federal Republic of Yugoslavia and maintained that they were the continuation of

the former mother state. This claim was opposed by the other republics and by the

international community. In 1992, the Security Council even declared that “the state

formerly known as the Socialist Federal Republic of Yugoslavia has ceased to

exist.”

In November 2000, Yugoslavia applied for membership in the UN thereby

abandoning its claim to continuity of SFRY.

Succession of States

The issues on succession can be succession to territory, to treaties, to

property and contracts. The rules may be summarized thus:5

When a state succeeds another state with respect to particular territory,

the capacities, rights and duties of the predecessor

’The summary given here is taken from THIRD RESTATEMENT OF FOREIGN RELATIONS LAW.

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SUBJECTS OF INTERNATIONAL LAW: STATES

state with respect to that territory terminate and are assumed by the

successor state.

As to state property, subject to agreement between predecessor

and successor states, title passes as follows:

(a) where part of the territory of a state becomes territory of

another state, property of the predecessor state located in that territory

passes to the successor state;

(b) where a state is absorbed by another state, property of the

absorbed state, wherever located, passes to the absorbing state;

the predecessor state located in the territory of the new state passes to

the new state.

With respect to public debts, subject again to agreement

between the states concerned, responsibility for the public debt of the

predecessor, and rights and obligations under its contracts, remain with

the predecessor state, except as follows:

(a) where part of the territory of a state becomes territory of

another state, local public debt, and the rights and obligations of the

predecessor state under contracts relating to that territory, are

transferred to the successor state;

(b) where a state is absorbed by another state, the public debt,

and rights and obligations under contracts of the absorbed state, past to

the absorbing state;

debt, and rights and obligations of the predecessor state under contracts

relating to the territory of the new state, pass to the new state.

With respect to treaties (already touched on in the Chapter on

Treaties), the Vienna Convention is followed. The rules are:

(1) When part of the territory of a state becomes territory of

another state, the international agreements of the predecessor state

cease to have effect in respect of the territory and the international

agreements of the successor state come into force there. This reflects

the “moving treaty rule” or “moving boundaries rule.” If X has a treaty

with Y, and part of Y is transferred to Z, X may seek relief from treaty

obligation under “rebus sic stantibus.’’

(2) When a state is absorbed by another state, the international agreements of the absorbed state are terminated and the

84 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

international agreements of the absorbing state become applicable to

the territory of the absorbed state. Third states may appeal to rebus sic

stantibus.

(3) When a part of a state becomes a new state, the new state

does not succeed to the international agreements to which the

predecessor state was party, unless, expressly or by implication, it

accepts such agreements and the other party or parties thereto agree or

acquiesce. This applies the “clean slate theory.”

(4) Pre-existing boundary and other territorial agreements

continue to be binding notwithstanding. This is the uti possidetis rule.

The consequences of the re-unification of West and East Germany were

governed by the German Unification Treaty of 1990. The special case of

Hongkong’s return to China in 1997 were governed by the 1984 Sino-British Joint

Declaration on the Question of Hongkong.

Fundamental Rights of States.

Independence

Independence is the capacity of a state to provide for its own well-being and

development free from the domination of other states, providing it does not impair

or violate their legitimate rights. As a right, independence means the right to

exercise within its portion of the globe, to the exclusion of others, the functions of a

state.6 But restrictions upon a state’s liberty arising either from customary law or

from treaties do not deprive a state of independence.

Flowing from independence are certain other rights such as jurisdiction over

its territory and permanent population, the right to self defense and the right of

legation. Independence also involves the duty not to interfere in the internal affairs

of other states.

Equality

Equality obviously does not mean equality in political or economic power.

Rather, it means equality of legal rights irrespective of the size or power of the

state. Within the General Assembly, the doctrine

Island of Las Palmas Arbitration [ 1928].

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SUBJECTS OF INTERNATIONAL LAW: STATES

means one state, one vote. The UN Charter, Article 2, provides that “the

Organization is based on the principle of the sovereign equality of all its

Members.” Hence, each has one vote in the General Assembly and every state may

aspire for the offices in the various organs of the UN.

Peaceful co-existence

This right has been developing over the past twenty years. The theory was

elaborated in 1954 as the Five Principles of Co-existence by India and China and

includes mutual respect for each other’s territorial integrity and sovereignty, mutual

non-aggression, non interference in each other’s affairs and the principle of

equality. This has also been expressed in other documents such as the 1970

Declaration on Principles of International Law Friendly Relations and Cooperation

Among States.

Some Incomplete Subjects.

Protectorates. Protectorates are largely of historical importance. They are

dependent states which have control over their internal affairs but whose external

affairs are controlled by another state. They were sometimes referred to as

autonomous states, vassal states, semisovereign or dependent states

Federal state. This is a union of previously autonomous entities. Various

arrangements are possible. One arrangement may involve placing full authority in a

central organ while another arrangement might lodge authority in the individual

entities to the detriment of the central organ. The central organ will have personality

in international law; but the extent of international personality of the component

entities can be a problem.

Mandated and Trust Territories. Mandated territories were territories placed

by the League of Nations under one or other of the victorious allies of World War I.

The mandate system was replaced by the trusteeship system after World War II

under the Trusteeship Council. For instance, the Carolines, Marianas and Marshall

Islands were placed under the trusteeship of the United States. These have been in

the process of evolution and self-determination since 1986.

Taiwan. Taiwan seems to be a non-state territory which de jure is part of

China. But it is too affluent and strategically located to be over

86 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

looked by international actors. It is interesting that when Taiwan sought accession

to the GATT treaty it did not do so as a state but as part of a “customs territory.”

The Sovereign Order of Malta. There was a time when the order had

sovereignty over Malta. This has since been lost. But the Italian Court of Cassation

in 1935 recognized its international personality. Currently, it has diplomatic

relations with over forty states.

The Holy See and Vatican City. In 1929, the Lateran Treaty was signed with

Italy which recognized the state of the Vatican City and “the sovereignty of the

Holy See in the field of international relations as an attribute that pertains to the

very nature of the Holy See, in conformity with its traditions and the demands of its

mission in the world.” It has no permanent population.

Chapter 6

OTHER SUBJECTS OF INTERNATIONAL LAW

States are the dominant subjects of international law. But there are others:

international organizations, insurgents, liberation movements, and, in a more

limited way, individuals.

1. International Organizations.

Establishment, international personality, immunity

In the matter of international organizations, there are three general questions

that need to be discussed. First, how do they come into existence? Second, do they

have international personality? Third, do they enjoy any kind of immunity?

An international organization is an organization that is set up by treaty

among two or more states. It is different from non-governmental organizations

(NGO) which are set up by private persons. The constituent document of

international organizations therefore is a treaty. For this reason, only states are

members of international organizations. As the ICJ put it in its Advisory Opinion

on the Use of Nuclear Weapons (1996) about the World Health Organization:

The Court observes that in order to delineate the field of activity

or the area of competence of an international organization, one must

refer to the relevant rules of the organization and, in the first place, to

its constitution. From a formal standpoint, the constituent instruments

of international organizations are multilateral treaties, to which the

well-established rules of treaty interpretation apply.

But they are also treaties of a particular type; their object is to create

new subjects of law endowed with a certain autonomy, to which the

parties entrust the task of realizing common goals.

Such treaties can raise specific problems of interpretation owing, inter

alia, to their character which is conventional and at the same

88 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

time institutional; the very nature of the organization created, the

objectives which have been assigned to it by its founders, the

imperatives associated with the effective performance of its functions,

as well as its own practice, are all elements which may deserve special

attention when the time comes to interpret these constituent treaties.

That international organizations have international personality was

established in the oft-quoted Reparations Case (ICJ Advisory Opinion, 1949)

involving the international personality of the United Nations. The question raised

was formulated thus:

“I. In the event of an agent of the United Nations in the

performance of his duties suffering injury in circumstances involving

the responsibility of a State, has the United Nations, as an

Organization, the capacity to bring an international claim against the

responsible de jure or de facto government with a view to obtaining

the reparation due in respect of the damage caused

(a) to the United Nations, (b) to the victim or to persons entitled

through him?

The Court answered the question after rephrasing it:

Do the provisions of the Charter relating to the functions of the

Organization imply that the latter is empowered to assure its agents

limited protection? These powers, which are essential to the

performance of the functions of the Organization, must be regarded as

a necessary implication arising from the Charter. In discharging its

functions, the Organization may find it necessary to entrust its agents

with important missions to be performed in disturbed parts of the

world. These agents must be ensured of effective protection. It is only

in this way that the agent will be able to carry out his duties

satisfactorily. The Court therefore reaches the conclusion that the

Organization has the capacity to exercise functional protection in

respect of its agents. The situation is comparatively simple in the case

of Member States, for these have assumed various obligations towards

the Organization.

But what is the situation when a claim is brought against a State

which is not a Member of the Organization? The Court is of opinion

that the Members of the United Nations created an entity possessing

objective international personality and not merely personality

recognized by them alone. As in the case of Question 1(a), the Court

therefore answers Question 1(b) in the affirmative.

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OTHER SUBJECTS OF INTERNATIONAL LAW

The Court had to answer the question because the UN Charter is silent about

the organization’s international personality. In the case of other organizations, the

charter itself might specifically endow it with international personality. But if it

does not, possession of international personality may be implied from the functions

of the organization, as in the case of the UN.

Although international organizations have personality in international law,

their powers and privileges are by no means like those of states. Their powers and

privileges are limited by the constituent instrument that created them. To quote

again from the Advisory Opinion on the Use of Nuclear Weapons cited supra:

The Court goes on to point out that international organizations

are subjects of international law which do not, unlike States, possess a

general competence. International organizations are governed by the

“principle of speciality," that is to say, they are invested by the States

which create them with powers, the limits of which are a function of

the common interests whose promotion those States entrust to them.

The powers conferred on international organizations are

normally the subject of an express statement in their constituent

instruments. Nevertheless, the necessities of international life may

point to the need for organizations, in order to achieve their objectives,

to possess subsidiary powers which are not expressly provided for in

the basic instruments which govern their activities.

It is generally accepted that international organizations can exercise

such powers, known as “implied” powers.

Immunities

Because they enjoy international personality, they can also be given the

immunities and privileges of international persons. Their immunities, however,

have for basis not sovereignty, as it is for states, but the need for the effective

exercise of their functions.

In the case of the United Nations, the immunities are spelled out in Article

105 of the UN Charter:

1. The Organization shall enjoy in the territory of each of its

Members such privileges and immunities as are necessary for the fulfillment

of its purposes.

90 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

2. Representatives of the Members of the United Nations and

officials of the Organization shall similarly enjoy such privileges and

immunities as are necessary for the independent exercise of their functions in

connection with the Organization.

3. The General Assembly may make recommendations with a

view to determining the details of the application of paragraphs 1 and 2 of

this Article or may propose conventions to the Members of the United

Nations for this purpose.

This has been supplemented by the General Convention on the Privileges

and Immunities of the United Nations (1946) and by the Convention and Privileges

of Specialized Agencies (1947).

There is no common law doctrine recognizing the immunity of international

organizations. Their immunities come from the conventional instrument creating

them a clear example of the grant of immunity is the 1946 General Convention on

the Privileges and Immunities of the United Nations.

The Philippine Court has affirmed the immunity of other international

organization in International Catholic Migration Commission v. Calleja,1

Southeast Asian Fisheries Development Center v. Acosta, and Lasco v. United

Nations Revolving Fund for Natural Resources Exploration?

A curious case, however, is the case of Kapisanan ng mga Manggagawa v.

The International Rice Research Institute (IRRI) decided jointly with the

International Catholic Migration case. IRRI was created not by a treaty but by a

Memorandum of Agreement between the Philippine Government on the one hand

and the Rockefeller and Ford Foundations, two private organizations. It is therefore

not an international organization. Initially, IRRI was organized and registered with

the Securities and Exchange Commission as a private corporation subject to all

laws and regulations. However, by virtue of Pres. Decree No. 1620, promulgated on

19 April 1979, IRRI was granted the status, prerogatives, privileges and immunities

of an international organization. The Supreme Court has consistently recognized

the immunity granted

'G.R. No. 85750, September 28,1990.

’G.R. Nos. 109095-109107, February

23,1995.

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OTHER SUBJECTS OF INTERNATIONAL LAW

to IRRI declaring it to be on the same footing as the International Catholic

Migration Commission.

The Court recognized that the Catholic Migration Commission was a

“specialized agency” under the Charter of the United Nations. Likewise, without

giving the reason why, it recognized the IRRI as an international organization. The

Court said:

The grant of immunity from local jurisdiction to ICMC and

IRRI is clearly necessitated by their international character and

respective purposes. The objective is to avoid the danger of partiality

and interference by the host country in their internal workings.

The exercise of jurisdiction by the Department of Labor in these

instances would defeat the very purpose of immunity, which is to

shield the affairs of international organizations, in accordance with

international practice, from political pressure or control by the host

country to the prejudice a member States of the organization, and to

ensure the unhampered performance of their functions.

The end result of the protective blanket that has been wrapped around IRRI is

the efforts of employees to seek redress for violations of labor rights have been

repeatedly rebuffed by the Supreme Court. For all practical purposes, they are

denied the protection given by the Constitution in Article XIII, Section 3

guaranteeing full protection for labor.

There have also been two cases involving the immunity of the Asian

Development Bank (ADB). The bank’s Charter is a treaty to which the Philippines

is a party. The first case was Department of Foreign Affairs v. National Labor

Relations Board,3 where the issue was whether the National Labor Relations

Commission could assume jurisdiction over a case of illegal dismissal against

ADB. In upholding the immunity of the ADB, the Court appealed to the provisions

of the ADB’s Charter:

Article 50(1) of the Charter provides:

The Bank shall enjoy immunity from every form of legal

process, except in cases arising out of or in connection with the

exercise of its powers to borrow money, to guarantee obligations, or to

buy and sell or underwrite the sale of securities.

’G.R.No. 113191, September 18,1996.

92 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Similar provisions are found in the Headquarters Agreement. Thus, its

Section 5 reads:

The Bank shall enjoy inununity from every form of legal

process, except in cases arising out of, or in connection with, the

exercise of its powers to borrow money, to guarantee obligations, or to

buy and sell or underwrite the sale of securities.

The Court concluded:

The above stipulations of both the Charter and Headquarters

Agreement should be able, nay well enough, to establish that, except in

the specified cases of borrowing and guarantee operations, as well as

the purchase, sale and underwriting of securities, the ADB enjoys

immunity from legal process of every form....

The Court reiterated what it had said in World Health Organization v.

Aquino.*

It is a recognized principle of international law and under our

system of separation of powers that diplomatic immunity is essentially

a political question and courts should refuse to look beyond a

determination by the executive branch of the government, and where

the plea of diplomatic immunity is recognized and affirmed by the

executive branch of the government.... it is then the duty of the courts

to accept the claim of immunity upon appropriate suggestion by the

principal law officer of the government, ... or other officer acting under

this direction. Hence, in adherence to the settled principle that courts

may not so exercise their jurisdiction ... as to embarrass the executive

arm of the government in conducting foreign relations, it is accepted

doctrine that ‘in such cases the judicial department of government

follows the action of the political branch and will not embarrass the

latter by assuming an antagonistic jurisdiction.

The World Health case was an original action for certiorari and prohibition

to set aside respondent judge’s refusal to quash a search warrant issued by him at

the instance of Constabulary officers for the search and seizure of the personal

effects of an official of the World Health Organization.

4G.R. No. L-35131, November 29,1972.

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OTHER SUBJECTS OF INTERNATIONAL LAW

The second case was Jeffrey Liang (Hue Feng) v. People .

The case

involved a criminal complaint against Jeffrey Liang, an ADB official, for grave oral

defamation. Appeal was made to the political character of Jeffrey Liang as an agent

of international organization. But the Court ruled that the immunity granted to

officers and staff of the ADB was not absolute; but limited to acts performed in an

official capacity and could not cover the commission of a crime such as slander or

oral defamation in the name of official duty.

The United Nations: Structure and Powers

The principal international organization is the United Nations. It came into

being on October 24,1945, when the UN Charter came into force. The membership

now includes almost all the world’s independent nations. Admission to membership

is governed by Article 4 which says:

The UN is a universal organization charged with peacekeeping

responsibilities, the development of friendly relations among nations,

the achievement of international cooperation in solving international

problems of an economic, social, cultural and humanitarian character,

and the promotion of human rights and fundamental freedoms for all

human beings without discrimination. Article 1 of the Charter says that

the UN can include “all other peace-loving states which accept the

obligations contained in the present Charter and, in the judgment of the

Organization, are able and will to carry out these obligations.” As new

independent nations arise, the number of members continue to grow.

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that

end: to take effective collective measures for the prevention and

removal of threats to the peace, and for the suppression of acts of

aggression or other breaches of the peace, and to bring about by

peaceful means, and in conformity with the principles of justice and

international law, adjustment or settlement of international disputes or

situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on

respect for the principle of equal rights and self-determination

5G.R. No. 125865, March 26,2001.

94 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

of peoples, and to take other appropriate measures to strengthen

universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian

character, and in promoting and encouraging respect for human rights

and for fundamental freedoms for all without distinction as to race,

sex, language, or religion; and

4. To be a center for harmonizing the actions of nations in

the attainment of these common ends.

The UN, however, is enjoined against intervening in matters which are

“essentially within the domestic jurisdiction” of any state. Article 2(7) says:

Nothing contained in the present Charter shall authorize the

United Nations to intervene in matters which are essentially within the

domestic jurisdiction of any state or shall require the Members to

submit such matters to settlement under the present Charter; but this

principle shall not prejudice the application of enforcement measures

under Chapter VII.

In the hierarchy of international organizations, the UN occupies a position of

preeminence. Article 103 says that “in the event of a conflict between the

obligations of the Members of the United Nations under the present Charter and

their obligations under any other international agreement, their obligations under

the present Charter shall prevail.” This clause is known as the “international

constitutional supremacy clause.”

The principal organs of the UN are the General Assembly, the Security

Council, the Economic and Social Council (ECOSOC), the Trusteeship Council,

the International Court of Justice (ICJ), and the Secretariat.

General Assembly

In the General Assembly, all members are represented. It has plenary powers

in the sense that it “may discuss any question or any matters within the scope of the

... Charter.” (Article 10)

The GA distinguishes between “important questions” and “other questions.”

Important questions are decided by a two-thirds majority of the members voting

and present. “Other questions” require only a

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OTHER SUBJECTS OF INTERNATIONAL LAW

majority. The Charter identifies what the “important questions” are and the GA

may, by a majority vote, identify other important questions. (Article 18[3])

Security Council

The Security Council has “primary responsibility for the maintenance of

international peace and security.” (Article 24[1]) There are 15 member states, five

of them permanent (China, France, Russia [in place of the former USSR], United

Kingdom and the US). The others are elected for two year terms in accordance with

equitable geographic representation.

The Security Council distinguishes between “procedural matters” and “all

other matters.” Matters that are not procedural require nine affirmative votes,

including the “concurring votes of the permanent members.” (Article 27[3]) But

since the Charter does not specify what matters are procedural, the Council practice

is that a decision on whether a matter is procedural or not also requires the

concurrence of the permanent members. Hence, a double veto by the permanent

members is possible. And an abstention is considered a veto.

ECOSOC

The ECOSOC has 54 member states elected for three year terms. It has a

large number of subsidiary organs, among them the UN Commission on Human

Rights and the Commission on the Status of Women.

Trusteeship Council

The Trusteeship Council supervises non-self governing territories. Its

jurisdiction has already become very limited. Palau was the last entity to be under

the Council. The Council suspended operations after Palau became independent on

1 October 1994.

Secretariat

The Secretariat “shall comprise a Secretary General and such staff as the

Organization may require.” (Article 97) The Secretary General is elected to a five

year term by the General Assembly upon the recommendation of the Security

Council, subject to veto power. He is the chief administrator of the organization and

has the power to “bring to the attention of the Security Council any matter which in

his opinion

96 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

may threaten the maintenance of international peace and security.” (Article 99)

International Court of Justice

The International Court of Justice is the principal judicial organ of the UN.

This will be treated in another chapter.

Other Agencies

Aside from the main organs of the UN, there are also specialized agencies.

Some of these are: the United Nations Educational, Scientific and Cultural

Organization (UNESCO). The International Civil Aviation Organization (ICAO),

the World Health Organization (WHO), the Food and Agricultural Organization

(FAO), the World Bank and the International Monetary Fund (IMF).

Regional Organizations: ASEAN

Regional organizations also play an important role. But they are neither

organs nor subsidiary organs of the UN. They are autonomous international

organizations having an institutional affiliation with the UN by concluding

agreements with the UN. (Article 5). They are international institutions created by

international agreements for the purpose of dealing with regional problems in

general or with specific matters be they economic, military or political.

The regional organization of South East Asian nations is the ASEAN. It was

established on 8 August 1967 in Bangkok, Thailand, with the signing of the

Bangkok Declaration by the five original Member Countries namely Indonesia,

Malaysia, Philippines, Singapore and Thailand.

Brunei Darussalam joined the Association on 8 January 1984. Vietnam

became the seventh member of ASEAN on 28 July 1995. Laos and Myanmar were

admitted into ASEAN on 23 July 1997. Cambodia also became a member in 1999.

The Bangkok Declaration united the ASEAN Member Countries in a joint

effort to promote economic cooperation and the welfare of the people in the region.

The Bangkok Declaration set out guidelines for ASEAN’s activities and defined the

aims of the organization.

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OTHER SUBJECTS OF INTERNATIONAL LAW

The ASEAN nations came together with three main objectives in mind: to

promote the economic, social and cultural development of the region through

cooperative programs; to safeguard the political and economic stability of the

region against big power rivalry; and to serve as a forum for the resolution of intraregional differences.

The ASEAN Declaration states that the aims and purposes of the Association

are: (1) to accelerate economic growth, social progress and cultured development in

the region and (2) to promote regional peace and stability through abiding respect

for justice and the rule of law in the relationship among countries in the region and

adherence to the principles of the United Nations Charter.

The ASEAN Vision 2020, adopted by the ASEAN Leaders on the 30th

Anniversary of ASEAN, agreed on a shared vision of ASEAN as a concert of

Southeast Asian nations, outward looking, living in peace, stability and prosperity,

bonded together in partnership in dynamic development and in a community of

caring societies.

In 2003, the ASEAN Leaders resolved that an ASEAN Community shall be

established comprising three pillars, namely, ASEAN Security Community,

ASEAN Economic Community and ASEAN Socio- Cultural Community.

ASEAN Member Countries have adopted the following fundamental

principles in their relations with one another, as contained in the Treaty of Amity

and Cooperation in Southeast Asia (TAC):

— mutual respect for the independence, sovereignty, equality, territorial

integrity, and national identity of all nations;

— the right of every State to lead its national existence free from

external interference, subversion or coercion;

— non-interference in the internal affairs of one another;

— settlement of differences or disputes by peaceful manner;

— renunciation of the threat or use of force; and

— effective cooperation among themselves.

All ten members have already ratified the Charter and it will take effect upon

the deposit of all ratifications.

98 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

2. Insurgents.

Protocol II

The first and only international agreement exclusively regulating the conduct

of parties in a non-international armed conflict is the 1977 Protocol II to the 1949

Geneva Conventions. It “develops and supplements Article 3, infra, common to the

Geneva Conventions of 12 August 1949 without modifying its existing conditions

or application.” A non-international armed conflict covered by this expanded

guarantee is defined in Article I. They are armed conflicts

which take place in the territory of a High Contracting Party between

its armed forces and dissident armed forces or other oiganized armed

groups which, under responsible command, exercise such control over

a part of its territory as to enable them to carry out sustained and

concerted military operations and to implement this Protocol.

Article I further adds that the “Protocol shall not apply to situations of

internal disturbances and tensions, such as riots, isolated and sporadic acts of

violence and other acts of a similar nature, as not being armed conflicts.” This is

true even if the armed forces of the territory may have been called upon to suppress

the disorder.

It will thus be seen that Protocol II sets down requirements for what it calls

“material field of application “First, the armed dissidents must be under

responsible command; second, they must exercise such control over a part of its

territory as to enable them to carry out sustained and concerted military operations

and to implement this Protocol.” The Protocol thus sets a very high threshold for

applicability, higher than the threshold for the applicability of Protocol I which

does not require control over territory. For this reason, in the conflict between the

Philippine government and the National Democratic Front, the Philippine

government has been able to maintain consistently that the NDF and its New

People’s Army have not crossed this threshold and that therefore what applies to

them is Common Article 3 and not Protocol II. This means that they do not have

the status of subject of international law. The same can be said of the MNLF and

MILF in Mindanao.

Insurgent groups which satisfy the material field of application of Protocol II

may be regarded as “para-statal entities possessing definite if limited form of

international personality.” State practice indicates

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OTHER SUBJECTS OF INTERNATIONAL LAW

two specific attributes of such “personality.” First, they are recognized as having

belligerent status against the de jure government. Other states are therefore

required to maintain neutrality regarding them. Second, they are seen as having

treaty making capacity.

Common Article 3

Traditionally, international law on armed conflict does not apply to internal

conflicts such as civil wars or rebellions. In 1949, however, it was decided that

minimum humanitarian protection should also be promulgated to cover internal

conflict. For this reason, each of the four Geneva Conventions contains a common

Article 3 which says:

Art. 3. In the case of armed conflict not of an international

character occurring in the territory of one of the High Contracting

Parties, each Party to the conflict shall be bound to apply, as a

minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including

members of armed forces who have laid down their arms and those

placed hors de combat by sickness, wounds, detention, or any other

cause, shall in all circumstances be treated humanely, without any

adverse distinction founded on race, color, religion or faith, sex, birth

or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at

any time and in any place whatsoever with respect to the abovementioned persons:

(a) violence to life and person, in particular murder of

all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(d) the passing of sentences and the carrying out of

executions without previous judgment pronounced by a

regularly constituted court, affording all the judicial guarantees

which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International

Committee of the Red Cross, may offer its services to the Parties to the

conflict.

100 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The Parties to the conflict should further endeavor to bring into

force, by means of special agreements, all or part of the other

provisions of the present Convention.

The application of the preceding provisions shall not affect the

legal status of the Parties to the conflict.

The last sentence means that the application does not convert the conflict into

an international one and therefore does not preclude the possibility that any

participant in the conflict may be prosecuted for treason. What this means is that,

although rebels have the protection of Common Article 3, they do not thereby gain

the status of subjects of international law unless they satisfy the “material field of

application” of Protocol II.

3. National Liberation Movements.

National liberation movements are organized groups fighting in behalf of a

whole people for freedom from colonial powers. According to the First Protocol of

the 1977 Geneva Convention, they are “peoples fighting against colonial

domination and alien occupation and against racist regimes in the exercise of their

right of self-determination, as enshrined in the Charter of the United Nations.” They

first arose in Africa and then in Asia. Many of these movements succeeded in their

struggle and acquired statehood. Thus, liberation movements are now on the wane.

What are their characteristics. First, they can be based within the territory

which they are seeking to liberate or they might find a base in a friendly country.

Control of territory, therefore, is not a necessary factor. Their legitimacy rather

comes from their goal: to free themselves from colonial domination, or a racist

regime or foreign occupation. Briefly, their goal is self-determination.

Although control over territory and people is not essential to their legitimacy,

the ultimate goal of controlling a definite territory is necessary for them to be

recognized as international subjects. Besides, they must have an organization

capable of coming into contact with other international organizations. With these

characteristics, they can claim international status. As Article 96, of the above

Convention says:

The authority representing a people engaged against a High Con tracting

Party in an armed conflict of the type referred to in Article 1,

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101

paragraph 4, may undertake to apply the Conventions and this Protocol in relation

to that conflict by means of a unilateral declaration addressed to the depositary.

Such declaration shall, upon its receipt by the depositary, have in relation to that

conflict the following effects:

(a) The Conventions and this Protocol are brought into force for the

said authority as a Party to the conflict with immediate effect;

(b) The said authority assumes the same rights and obligations as

those which have been assumed by a High Contracting Party to the

Conventions and this Protocol; and

Parties to the conflict.

4. Individuals.

In the early development of international law human beings were exclusively

under the control of states. In international law they were objects or at best

“beneficiaries” of international law. With the greater global awareness of human

rights individuals have now come to be recognized as possessing albeit limited

rights and obligations in international law.

Among the obligations of individuals are those arising from the regulation of

armed conflicts. Violation of these rules can place individuals under criminal

responsibility. There are also rules on international crimes to which individuals are

subject such as crimes against humanity, genocide, aggression, and terrorism.

When individual rights are violated, however, individuals still have to rely on

the enforcement power of states. But some treaties have provided for the right of

individuals to petition international bodies alleging that a contracting state has

violated some of their human rights.

Antonio Cassese sums up the current situation thus:6

In sum, in contemporary international law individuals possess

international legal status. They have a few obligations deriving from

customary international law. In addition, procedural

‘Antonio Cassese, INTERNATIONAL LAW 85, Oxford University Press, 2001.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

rights enure to the benefit of individuals not vis-d-vis States, but only

toward the group of States that have concluded treaties, or the

international organizations that have adopted resolutions, envisaging

such rights. Clearly the international legal status of individuals is

unique: they have a lopsided position in the international community.

As far as their international obligations are concerned, they are

associated with all the other members of the international community;

in contrast, they do not possess rights in relation to all members of that

community. Plainly, all States are willing to demand of individuals

respect for some fundamental values, while they are less prepared to

associate them to their international dealings, let alone to grant them

the power to sue States before international bodies. To differentiate the

position of individuals from that of States, it can be maintained that

while States have international legal personality proper, individuals

have a limited locus standi in international law. Furthermore, unlike

States, individual have a limited array of rights and obligations: on this

score, one can speak of a limited legal capacity (in this respect they

can be put on the same footing as other non-State international

subjects: insurgents, international organizations, and national liberation

movements).

Chapter 7

TERRITORY: LAND, AIR, OUTER SPACE

Territory in International Law.

Territory as an element of a state means an area over which a state has

effective control. As the Las Palmas case, infra, shows, control over territory is of

the essence of a state. The exact boundaries might be uncertain, but there should be

a definitive core over which sovereignty is exercised. Acquisition of territory more

precisely means acquisition of sovereignty over territory. Judge Huber in the Las

Palmas case said that “sovereignty over a portion of the surface of the globe is the

legal condition for the inclusion of such portion in the territory of any particular

state.”

Territory includes land, maritime areas, airspace and outer space. The scope

of a state’s jurisdiction over maritime areas will be considered in another chapter.

In this chapter, only land area, air space and outer space will be considered.

Modes of Acquisition of Sovereignty over Territory.

Some of the questions regarding territory are now of historical interest

merely. But how they are acquired is still worth examining. The roots of the law on

territorial sovereignty are traceable to Roman law provisions governing ownership

and possession. Similarly the classification of the different methods of acquiring

territory comes from Roman rules of acquiring property. The traditional modes of

acquisition include discovery and occupation, prescription, cession, conquest and

subjugation, and accretion.

Discovery and Occupation

Occupation is the acquisition of terra nullius, that is, territory which prior to

occupation belonged to no state or which may have been

103

104 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

abandoned by a prior occupant. There is abandonment when the occupant leaves

the territory with the intention of not returning. In the Western Sahara Case,' the

question was whether Western Sahara, inhabited as it was by organized tribes, was

terra nullius. The ICJ answered the question thus:

Whatever differences of opinion there may have been among

jurists, the State practice of the relevant period indicates that territories

inhabited by tribes or peoples having a social and political

organization were not regarded as terra nullius.

It shows that in the case of such territories the acquisition of

sovereignty was not generally considered as effected unilaterally

through “occupation” of terra nullius by original title but through

agreements concluded with local rulers. On occasion, it is true, the

word “occupation” was used in a non-technical sense denoting simply

acquisition of sovereignty; but that did not signify that the acquisition

of sovereignty through such agreements with authorities of the country

was regarded as an “occupation” of a “terra nullius” in the proper

sense of these terms. On the contrary, such agreements with local

rulers, whether or not considered as an actual “cession” of the

territory, were regarded as derivative roots of title, and not original

titles obtained by occupation of terra nullius.

In the present instance, the information furnished to the Court

shows that at the time of colonization Western Sahara was inhabited

by peoples which, if nomadic, were socially and politically organized

into tribes and under chiefs competent to represent them.

Discovery of terra nullius, moreover, is not enough to establish sovereignty.

It must be accompanied by effective control. This is the teaching of the Las Palmas

Case.

THE ISLAND OF PALMAS

Perm. Ct. Arb. (1928)

(Abridged)

Background. Palmas (also referred to as Miangas) is an

island about two miles long by three fourths of a mile wide

which at the time of this case had a population of about 750 and

was of little strategic or economic value. It sits

'Advisory Opinion, ICJ, 1975.

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TERRITORY: LAND, AIR, OUTER SPACE

about halfway between the islands of Mindanao in the Philippines and Nanusa in the Netherlands Indies. It is, however,

within the boundaries of the Philippines as defined by Spain and

thus ceded to the United States in 1898. In 1906 an American

General, Leonard Wood, visited Palmas and discovered that the

Netherlands also claimed sovereignty over the island. An

agreement was signed on January 23, 1925, between the United

States and the Netherlands to submit the dispute to binding

arbitration. The Swiss jurist, Max Huber, was the selected

arbitrator acting for the Permanent Court of Arbitration. Huber

was charged to determine “whether the Island of Palmas” (or

Miangas) in its entirety forms a part of territory belonging to the

United States of America or of Netherlands territory.

HUBER, Arbitrator:

The United States, as successor to the rights of Spain over the

Philippines, bases its title in the first place on discovery. The existence

of sovereignty thus acquired is, in the American view, confirmed not

merely by the most reliable cartographers and authors, but also by

treaty, in particular by the Treaty of Munster, of 1648, to which Spain

and the Netherlands are themselves Contracting Parties. As, according

to the same argument, nothing has occurred of a nature, in

international law, to cause the acquired title to disappear, this latter

title was intact at the moment when, by the Treaty of December 10th,

1898, Spain ceded the Philippines to the United States. In these

circumstances, it is, in the American view, unnecessary to establish

facts showing the actual display of sovereignty precisely over the

Island of Palmas (or Miangas). The United States Government finally

maintains that Palmas (or Miangas) forms a geographical part of the

Philippine group and in virtue of the principle of contiguity belongs to

the Power having the sovereignty over the Philippines. ...

Sovereignty in the relation between States signifies

independence. Independence in regard to a portion of the globe is the

right to exercise therein, to the exclusion of any other State, the

functions of a State. The development of the national organization of

States during the last few centuries and, as a corollary, the

development of international law, have established this principle of the

exclusive competence of the State in regard to its own territory in such

a way as to make it the point of departure in settling most questions

that concern international relations. ...

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Titles of acquisition of territorial sovereignty in present- day

international law are either based on an act of effective apprehension,

such as occupation or conquest, or, like cession, presuppose that the

ceding and the cessionary Power or at least one of them, have the

faculty of effectively disposing of the ceded territory. In the same way

natural accretion can only be conceived of as an accretion to a portion

of territory where there exists an actual sovereignty capable of

extending to a spot which falls within its sphere of activity. It seems

therefore natural that an element which is essential for the constitution

of sovereignty should not be lacking in its continuation. So true is this,

that practice, as well as doctrine, recognizes — though under different

legal formulae and with certain differences as to the conditions

required — that the continuous and peaceful display of territorial

sovereignty (peaceful in relation to other States) is as good as a title.

The growing insistence with which international law, ever since the

middle of the 18th century, has demanded that the occupation shall be

effective would be inconceivable, if effectiveness were required only

for the act of acquisition and not equally for the maintenance of the

right....

Territorial sovereignty, as has already been said, involves the

exclusive right to display the activities of a state. This right has as

corollary a duty: the obligation to protect within the territory the rights

of other states, in particular their right to integrity and inviolability in

peace and in war, together with the rights which each state may claim

for its nationals in foreign territory. Without manifesting its territorial

sovereignty in a manner corresponding to circumstances, the state

cannot fulfill this duty. Territorial sovereignty cannot limit itself to its

negative side, i.e., to excluding the activities of other states; for it

serves to divide between nations the space upon which human

activities are employed, in order to assure them at all points the

minimum of protection of which international law is the guardian....

The principle that continuous and peaceful display of the

functions of state within a given region is a constituent element of

territorial sovereignty is not only based on the conditions of the

formation of independent states and their boundaries (as shown by the

experience of political history) as well as on an international

jurisprudence and doctrine widely accepted; this principle has further

been recognized in more than one federal state, where a jurisdiction is

established in order to apply, as need arises, rules of international law

to the interstate relations of the states members.

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TERRITORY: LAND, AIR, OUTER SPACE

Manifestations of territorial sovereignty assume, it is true,

different forms, according to conditions of time and place. Although

continuous in principle, sovereignty cannot be exercised in fact at

every moment on every point of territory. The intermittence and

discontinuity compatible with the maintenance of the right necessarily

differ according as inhabited or uninhabited regions are involved, or

regions enclosed within territories in which sovereignty is

incontestably displayed or again regions accessible from, for instance,

the high seas. It is true that neighboring states may by convention fix

limits to their own sovereignty, even in regions such as the interior of

scarcely explored continents where such sovereignty is scarcely

manifested, and in this way each may prevent the other from any

penetration of its territory. The delimitation of hinterland may also be

mentioned in this connection....

The title alleged by the United States of America as constituting

the immediate foundation of its claim is that of cession, brought about

by the Treaty of Paris, which cession transferred all rights of

sovereignty which Spain may have possessed in the region indicated in

Article III of the said Treaty and therefore also those concerning the

Island of Palmas (or Miangas).

It is evident that Spain could not transfer more rights than she

herself possessed....

It is recognized that the United States communicated, on

February 3rd, 1899, the Treaty of Paris to the Netherlands, and that no

reservations were made by the latter in respect of the delimitation of

the Philippines in Article III. The question whether the silence of a

third Power, in regard to a treaty notified to it, can exercise any

influence on the rights of this Power, or on those of the Powers

signatories of the treaty, is a question the answer to which may depend

on the nature of such rights. Whilst it is conceivable that a

conventional delimitation duly notified to third Powers and left

without contestation on their part may have some bearing on an

inchoate title not supported by any actual display of sovereignty, it

would be entirely contrary to the principles laid down above as to

territorial sovereignty to suppose that such sovereignty could be

affected by the mere silence of the territorial sovereign as regards a

treaty which has been notified to him and which seems to dispose of a

part of his territory....

In any case for the purpose of the present affair it may be

admitted that the original title derived from discovery belonged to

Spain....

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

If the view most favorable to the American arguments is

adopted — with every reservation as to the soundness of such view —

that is to say, if we consider as positive law at the period in question

the rule that discovery as such, i.e., the mere fact of seeing land,

without any act, even symbolical, of taking possession, involved ipso

jure territorial sovereignty and not merely an “Inchoate title,” a jus ad

rem, to be completed eventually by an actual and durable taking of

possession within a reasonable time, the question arises whether

sovereignty yet existed at the critical date, i.e., the moment of

conclusion and coming into force of the Treaty of Paris.

As regards the question which of different legal systems

prevailing at successive periods is to be applied in a particular case

(the so-called inter-temporal law), a distinction must be made between

the creation of rights and the existence of rights. The same principle

which subjects the act creative of a right to the law in force at the time

the right arises, demands that the existence of the right, in other words

its continued manifestation, shall follow the conditions required by the

evolution of law. International law in the 19th century, having regard

to the fact that most parts of the globe were under the sovereignty of

states members of the community of nations, and that territories

without a master had become relatively few, took account of a

tendency already existing and especially developed since the middle

of the 18th century, and laid down the principle that occupation, to

constitute a claim to territorial sovereignty, must be effective, that is,

offer certain guarantees to other states and their nationals. It seems

therefore incompatible with this rule of positive law that there should

be regions which are neither under the effective sovereignty of a state,

nor without a master, but which are reserved for the exclusive

influence of one state, in virtue solely of a title of acquisition which is

no longer recognized by existing law, even if such a title ever

conferred territorial sovereignty. For these reasons, discovery alone,

without any subsequent act, cannot at the present time suffice to prove

sovereignty over the Island of Palmas (or Miangas); and in so far as

there is no sovereignty, the question of an abandonment properly

speaking of sovereignty by one state in order that the sovereignty of

another may take its place does not arise.

... [E]ven admitting that the Spanish title still existed as

inchoate in 1898 and must be considered as included in the cession

under Article III of the Treaty of Paris, an inchoate title could not

prevail over the continuous and peaceful display of authority

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by another state; for such display may prevail even over a prior,

definitive title put forward by another state. This point will be

considered, when the Netherlands argument has been examined and

the allegations of either party as to the display of their authority can be

compared....

In the last place there remains to be considered title arising out

of contiguity. Although states have in certain circumstances

maintained that islands relatively close to their shores belonged to

them in virtue of their geographical situation, it is impossible to show

the existence of a rule of positive international law to the effect that

islands situated outside territorial waters should belong to a state from

the mere fact that its territory forms the terra firma (nearest continent

or island of considerable size). Not only would it seem that there are

no precedents sufficiently frequent and sufficiently precise in their

bearing to establish such a rule of international law, but the alleged

principle itself is by its very nature so uncertain and contested that

even governments of the same state have on different occasions

maintained contradictory opinions as to its soundness. The principle of

contiguity, in regard to islands, may not be out of place when it is a

question of allotting them to one state rather than another, either by

agreement between the parties, or by a decision not necessarily based

on law; but as a rule establishing ipso jure the presumption of

sovereignty in favor of a particular state, this principle would be in

conflict with what has been said as to territorial sovereignty and as to

the necessary relation between the right to exclude other states from a

region and the duty to display therein the activities of a state. Nor is

this principle of contiguity admissible as a legal method of deciding

questions of territorial sovereignty; for it is wholly lacking in precision

and would in its application lead to arbitrary results. This would be

especially true in a case such as that of the island in question, which is

not relatively close to one single continent, but forms part of a large

archipelago in which strict delimitations between the different parts are

not naturally obvious....

It is, however, to be observed that international arbitral

jurisprudence in disputes on territorial sovereignty (e.g., the award in

the arbitration between Italy and Switzerland concerning the Alpe

Craivarola; Lafontaine, Pasicrisie international, pp. 201- 209) would

seem to attribute greater weight to — even isolated

— acts of display of sovereignty than to continuity of territory, even if

such continuity is combined with the existence of natural boundaries....

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

In the opinion of the Arbitrator the Netherlands have succeeded

in establishing the following facts:

a. The Island of Palmas (or Miangas) Is identical with

an island designated by this or a similar name, which has

formed, at least since 1700, successively a part of two of the

native States of the Island of Sangi (Talautse Isles).

b. These native States were from 1677 onwards

connected with the East India Company, and thereby with the

Netherlands, by contracts of suzerainty, which conferred upon

the suzerain such powers as would ‘justify his considering the

vassal state as a part of his territory.’

c. Acts characteristic of state authority exercised

either by the vassal state or by the suzerain Power in regard

precisely to the Island of Palmas (or Miangas) have been

established as occurring at different epochs between 1700 and

1898, as well as in the period between 1898 and 1906.

The acts of indirect or direct display of Netherlands sovereignty

at Palmas (or Miangas), especially in the 18th and early 19th centuries

are not numerous, and there are considerable gaps in the evidence of

continuous display. But apart from the consideration that the

manifestations of sovereignty over a small and distant island, inhabited

only by natives, cannot be expected to be frequent, it is not necessary

that the display of sovereignty should go back to a very far distant

period. It may suffice that such display existed in 1898, and had

already existed as continuous and peaceful before that date long

enough to enable any Power who might have considered herself as

possessing sovereignty over the island, or having a claim to

sovereignty, to have, according to local conditions, a reasonable

possibility for ascertaining the existence of a state of things contrary to

her real or alleged rights....

There is moreover no evidence which would establish any act of

display of sovereignty over the island by Spain or another Power, such

as might counterbalance or annihilate the manifestations of

Netherlands sovereignty. As to third Powers, the evidence submitted to

the Tribunal does not disclose any trace of such action, at least from

the middle of the 17th century onwards. These circumstances, together

with the absence of any evidence of a conflict between Spanish and

Netherlands authorities during more than two centuries as regards

Palmas (or Miangas), are an indirect proof of the exclusive display of

Netherlands sovereignty....

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111

The conditions of acquisition of sovereignty by the Netherlands

are therefore to be considered as fulfilled. It remains now to be seen

whether the United States as successors of Spain are in a position to

bring forward an equivalent or stronger title. This is to be answered in

the negative.

The title of discovery, if it had not already been disposed of by

the Treaties of Munster and Utrecht, would, under the most favorable

and most extensive interpretation, exist only as an inchoate title, as a

claim to establish sovereignty by effective occupation. An inchoate

title however cannot prevail over a definite title founded on continuous

and peaceful display of sovereignty.

The title of contiguity, understood as a basis of territorial

sovereignty, has no foundation in international law....

The Netherlands title of sovereignty, acquired by continuous and

peaceful display of state authority during a long period of time going

probably back beyond the year 1700, therefore holds good....

For these reasons the Arbitrator ... decides that: The Island of

Palmas (or Miangas) forms in its entirety a part of Netherlands

territory.

Effective control, however, is relative and may depend on the nature of the

case — e.g., whether the territory is inhabited or not and how fierce the occupants

are. Where there are two or more claimants to a territory, effective control is also

relative to the strength of claims. (Eastern Greenland Case PCIJ 1933) The

Permanent Court of Justice deciding in favor of Denmark, said:

Before proceeding to consider in detail the evidence submitted

to the Court, it may be well to state that a claim to sovereignty based

not upon some particular act or title such as a treaty of cession but

merely upon continued display of authority, involves two elements

each of which must be shown to exist: the intention and will to act as

sovereign, and some actual exercise or display of such authority.

Another circumstance which must be taken into account by any

tribunal which has to adjudicate upon a claim to sovereignty over a

particular territory, is the extent to which the sovereignty is also

claimed by some other Power. In most of the cases involving claims to

territorial sovereignty which have come before an international

tribunal, there have been two competing claims to the

112 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

sovereignty, and the tribunal has had to decide which of the two is the

stronger. One of the peculiar features of the present case is that up to

1931 there was no claim by any Power other than Denmark to the

sovereignty over Greenland. Indeed, up till 1921, no Power disputed

the Danish claim to sovereignty.

It is impossible to read the records of the decisions in cases as to

territorial sovereignty without observing that in many cases the

tribunal has been satisfied with very little in the way of the actual

exercise of sovereign rights, provided that the other State could not

make out a superior claim. This is particularly true in the case of

claims to sovereignty over areas in thinly populated or unsettled

countries.

Prescription

Prescription is also recognized as a mode of acquiring sovereignty over

territory. Like occupation, however, prescription requires effective control. But

unlike occupation, the object of prescription is not terra nullius. Thus the required

length of effective control is longer than in occupation. Moreover, prescription

might be negated by a demonstrated lack of acquiescence by the prior occupant.

(Las Palmas)

Cession

Cession, or acquisition of territory through treaty, is another mode. Thus the

United States acquired the Philippines through the Treaty of Paris. Sovereignty

over Hong Kong is a more recent example of cession. In the middle of the 19th

century, part of the colony of Hong Kong was ceded in perpetuity to Britain. The

largest section of the colony, the so called New Territories, was merely held under

a lease that was due to expire in 1997. After protracted negotiations, a Joint

Declaration was signed through which the entire territory of Hong Kong would be

given over to the sovereignty of China on July 1,1997. This has already been

accomplished.

It should also be noted, however, that a treaty of cession which is imposed by

a conqueror is invalid. Thus there may be a situation where what prevails is merely

a de facto regime.

Conquest

Conquest was in earlier days the taking possession of a territory through

armed force. For acquisition of conquered territory, it was

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113

necessary that the war had ended either by treaty or by indication that all resistance

had been abandoned. Moreover, the conqueror must have had the intention of

acquiring the territory and not just of occupying it temporarily. For instance, the

U.S. in Germany had no intention of acquiring the territory.

Today conquest as a mode of acquisition is proscribed by international law.

The 1970 Declaration of Principles of International Law Concerning Friendly

Relations and Cooperation among States has this to say: “The territory of a State

shall not be the object of acquisition by another State resulting from the threat or

use of force. No territorial acquisition resulting from the use or threat of force shall

be recognized as legal.”

The latest instance of a response to an attempted conquest was the action

taken against Iraq when it invaded Kuwait.

Accretion and Avulsion

Accretion and avulsion can also lead to sovereignty over territory. This is

sovereignty by operation of nature. Accretion is the gradual increase of territory by

the action of nature; avulsion is a sudden change resulting for instance from the

action of a volcano.

Is contiguity a mode of acquisition?

Because of the closeness of the Spratleys to Philippine territory, it has been

argued that the area belongs to the Philippines by contiguity. The Las Palmas case

is argument against contiguity as a basis for sovereignty when it says: “it is

impossible to show a rule of positive international law to the effect that islands

situated outside the territorial waters should belong to a state from the fact that its

territory forms part of the terra frma.”

Intertemporal Law

Laws on acquisition of territory have changed. Note for instance the changes

on the legality of wars of conquest. Which laws then are applicable to a

controversy? The generally accepted view is that the rules in effect at the time of

the acquisition should be applied.

114 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Airspace.

Before the First World War, there were those who held that the airspace was

completely free. The outbreak of the First World War brought about the realization

that the use of the air had security implications. Out of this realization came the

approach which considers the air above as an extension of the territory below. Each

state has exclusive jurisdiction over the air space above its territory. Therefore,

consent for transit must be obtained from the subjacent nation.

The present regime on air navigation has developed from the Chicago

Convention on International Civil Aviation (1944) which entered into force in

1974. The Chicago Convention created the International Civil Aviation

Organization (ICAO), an agency of the United Nations, and prescribed the rules for

international civil aviation.

Articles 1 to 4 of the Convention set down the governing principles:

Article 1. Sovereignty

The contracting States recognize that every State has complete

and exclusive sovereignty over the airspace above its territory.

Article 2. Territory

For the purposes of this Convention the territory of a State shall

be deemed to be the land areas and territorial waters adjacent thereto

under the sovereignty, suzerainty, protection or mandate of such State.

Article 3. Civil and state aircraft

(a) This Convention shall be applicable only to civil aircraft,

and shall not be applicable to state aircraft.

(b) Aircraft used in military, customs and police services

shall be deemed to be state aircraft.

territory of another State or land thereon without authorization by

special agreement or otherwise, and in accordance with the terms

thereof.

(d) The contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the

safety of navigation of civil aircraft.

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115

Article 4. Misuse of civil aviation

Each contracting State agrees not to use civil aviation for any

purpose inconsistent with the aims of this Convention.

As can be seen, the Convention does deal with “state aircraft” excepted to say

in Article 3(a) that “No state aircraft of a contracting State shall fly over the

territory of another State or land thereon without authorization by special agreement

or otherwise, and in accordance with the terms thereof.” And “state aircraft”

means “aircraft used in military, customs and police services.” The Convention is

about “civil aviation.”

Flight over territory is classified into “non-scheduled” and “scheduled”

fights.

Article 5. Right of non-scheduled flight

Each contracting State agrees that all aircraft of the other

contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the

terms of this Convention, to make flights into or in transit nonstop

across its territory and to make stops for non-traffic purposes without

the necessity of obtaining prior permission, and subject to the right of

the State flown over to require landing. Each contracting State

nevertheless reserves the right, for reasons of safety of flight, to require

aircraft desiring to proceed over regions which are inaccessible or

without adequate air navigation facilities to follow prescribed routes,

or to obtain special permission for such flights.

Such aircraft, if engaged in the carriage of passengers, cargo, or

mail for remuneration or hire on other than scheduled international air

services, shall also, subject to the provisions of Article 7, have the

privilege of taking on or discharging passengers, cargo, or mail,

subject to the right of any State where such embarkation or discharge

takes place to impose such regulations, conditions or limitations as it

may consider desirable.

Article 6. Scheduled air services

No scheduled international air service may be operated over or

into the territory of a contracting State, except with the special

permission or other authorization of that State, and in accordance with

the terms of such permission or authorization.

J16 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Article 7. Cabotage

Each contracting State shall have the right to refuse

permission to the aircraft of other contracting States to take on in its

territory passengers, mail and cargo carried for remuneration or hire

and destined for another point within its territory. Each contracting

State undertakes not to enter into any arrangements which specifically

grant any such privilege on an exclusive basis to any other State or an

airline of any other State, and not to obtain any such exclusive

privilege from any other State.

The Chicago Convention attempts to provide protection for civilian aircraft.

Since the Convention, however, a number of incidents have taken place fatal to

civilian aircraft. In 1955 a civilian Israeli plane of El A1 Israel Airlines was shot

down by Bulgaria. In 1973, Israeli jets shot down a straying Libyan airliner. In

1983, Russian jets shot down a Korean Airlines plane. When the United States

made the declaration in the Security Council that “sovereignty neither requires nor

permits the shooting down of airlines in peacetime,” the USSR’s swift reply was

that there was a sovereign right of every State to protect its borders including its

airspace.

In 1953, Lissitzyn2

suggested a flexible rule with respect at least to state or

military aircraft: “In its effort to control the movements of intruding aircraft the

territorial sovereignty must not expose the aircraft and its occupants to unnecessary

and unreasonably great danger — that is, in relation to the apprehended

harmfulness of the intrusion.” This implies that the aircraft must not only not be

attacked, unless there is reason to suspect that the aircraft is a real threat, but also

that a warning to land or change course must be given before it is attacked. As to

civilian aircraft, however, there are those who hold that civilian aircraft should

never be attacked. In fact, even the Soviet Union justified its attack on the South

Korean airliner by saying that it had mistaken the aircraft for an American

reconnaissance aircraft.

Outer Space.

The assertion under air space law used to be that air sovereignty extended to

an unlimited extent, usque ad coelum. The development

2AJIL47 (1953) 559.

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TERRITORY: LAND, AIR, OUTER SPACE

117

of the law on outer space modified this assertion. Sovereignty over air space

extends only until where outer space begins. But where is that?

There is as yet no definite answer to that question. The answer will

eventually come from technological capabilities of conventional aircraft to reach

greater heights. Different numbers ranging from fifty to one hundred miles from the

earth have been mentioned. Nonetheless, the development of outer space law has

started. It is now accepted that outer space, wherever that might be, and celestial

bodies, are not susceptible to appropriation by any state. Among the first

achievements in this area is the 1967 Treaty on the Exploration and Use of Outer

Space. Some of its key provisions are the following:

Article I. The exploration and use of outer space, including the

moon and other celestial bodies, shall be carried out for the benefit and

in the interests of all countries, irrespective of their degree of economic

or scientific development, and shall be the province of all mankind.

Outer space, including the moon and other celestial bodies, shall be

free for exploration and use by all States without discrimination of any

kind, on a basis of equality and in accordance with international law,

and there shall be free access to all areas of celestial bodies. There

shall be freedom of scientific investigation in outer space, including

the moon and other celestial bodies, and States shall facilitate and

encourage international co-operation in such investigation.

Article 11. Outer space, including the moon and other celestial

bodies, is not subject to national appropriation by claim of sovereignty,

by means of use or occupation, or by any other means.

Article III. States Parties to the Treaty shall carry on activities in

the exploration and use of outer space, including the moon and other

celestial bodies, in accordance with international law, including the

Charter of the United Nations, in the interest of maintaining

international peace and security and promoting international cooperation and understanding.

Article IV. States Parties to the Treaty undertake not to place in

orbit around the Earth any objects carrying nuclear weapons or any

other kinds of weapons of mass destruction, install such weapons on

celestial bodies, or station such weapons in outer space in any other

manner.

The Moon and other celestial bodies shall be used by all States

Parties to the Treaty exclusively for peaceful purposes. The

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

establishment of military bases, installations and fortifications, the

testing of any type of weapons and the conduct of military maneuvers

on celestial bodies shall be forbidden. The use of military personnel

for scientific research or for any other peaceful purposes shall not be

prohibited. The use of any equipment or facility necessary for peaceful

exploration of the Moon and other celestial bodies shall also not be

prohibited.

Article V. States Parties to the Treaty shall regard astronauts as

envoys of mankind in outer space and shall render to them all possible

assistance in the event of accident, distress, or emergency landing on

the territory of another State Party or on the high seas. When

astronauts make such a landing, they shall be safely and promptly

returned to the State of registry of their space vehicle.

In carrying on activities in outer space and on celestial bodies,

the astronauts of one State Party shall render all possible assistance to

the astronauts of other States Parties. States Parties to the Treaty shall

immediately inform the other States Parties to the Treaty or the

Secretary-General of the United Nations of any phenomena they

discover in outer space, including the Moon and other celestial bodies,

which could constitute a danger to the life or health of astronauts.

Chapter 8 TERRITORY: LAW OF THE SEA

The importance of the seas flows from two factors: first, they are a medium

of communication, and second, they contain vast natural resources. In the 17th

century, the Portuguese proclaimed vast areas of sea as belonging to itself. But it

was Grotius who elaborated the doctrine of the open seas which considers the high

seas as res communis accessible to all. The doctrine, however, recognized as

permissible the delineation of a maritime belt by littoral states as an indivisible part

of its domain. This belt is the territorial sea.

Much of the history of the law of the sea has centered around the extent of

the territorial sea. But over the years, other jurisdictional issues have occurred and

today the prevailing law on maritime domain is the Convention on the Law of the

Sea of 1982 (LOS). Many of the provisions of the 1982 Law of the Sea are a

repetition of earlier convention law or a codification of customary law.

The basic statement of the extent of a state’s sovereignty over waters is set

down in Article 2 of the 1982 Law of the Sea:

Article 2. Legal status of the territorial sea, of the air space

over the territorial sea and of its bed and subsoil.

1. The sovereignty of a coastal State extends, beyond its

land territory and internal waters and, in the case of an archipelagic

State, its archipelagic waters, to an adjacent belt of sea, described as

the territorial sea.

2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

3. The sovereignty over the territorial sea is exercised

subject to this Convention and to other rules of international law.

119

120 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Territorial sea.

The territorial sea is a belt of sea outwards from the baseline and up to 12

nautical miles beyond. The width of this territorial belt of water has been the

subject of much disagreement. The original rule was the “cannon shot” rule, that

is, the width of water was measured in terms of the range of shore-based artillery.

Later this became the three-mile rule. The three mile rule has now been discarded

in favor of the twelve-mile rule now found in Article 3 of the 1982 LOS.

Where, however, the application of the twelve-mile rule to neighboring

littoral states would result in overlapping, the rule now established is that the

dividing line is a median line equidistant from the opposite baselines. But the

equidistance rule does not apply where historic title or other special circumstances

require a different measurement. Article 15,1982 LOS.

Baselines: “normal" or “straight"

To understand the extent of the territorial sea one must begin with an

understanding of baselines. The baseline is “the low-water line along the coast as

marked on large scale charts officially recognized by the coastal State.” (Section

5,182 LOS) The width of the territorial sea is measured from the baseline.

There are two ways of drawing the baseline. The “normal” baseline is one

drawn following “the low-water line along the coast as marked on large-scale

charts officially recognized by the coastal State.”' This line follows the curvatures

of the coast and therefore would normally not consist of straight lines.

There is no fixed norm for determining the “low water mark” but the AngloNorwegian Fisheries Case (U.K. v. Norway ICJ 1951) has suggested that “for the

purpose of measuring the breadth of the territorial sea, it is the low-water mark as

opposed to the high-water mark, or the mean between the two tides, which has

generally been adopted in the practice of States. This criterion is the most

favorable to the coastal State and clearly shows the character of territorial waters

as appurtenant to the land territory.”2

'Article 5, Law of the

1951 ICJ 116,128.

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TERRITORY: LAW OF THE SEA

121

Archipelagic states, however, instead of drawing “normal baselines,” have

drawn “straight baselines.” Instead of following the curvatures of the coast,

straight lines are drawn connecting selected points on the coast without

appreciable departure from the general shape of the coast. This method of drawing

lines was first upheld in the Anglo-Nor- wegian Fisheries Case3 which upheld the

straight baseline unilaterally adopted by Norway. Likewise, R.A. No. 3046 and

R.A. No. 5446 have drawn “straight baselines” around the Philippines.

The decision in the Fisheries Case upholding the “straight baseline

method” eventually became part of convention law. Article 7(1) of the Convention

on the Law of the Sea says: “In localities where the coastline is deeply indented

and cut into, or if there is a fringe of islands along the coast in its immediate

vicinity, the method of straight baselines joining appropriate points may be

employed in drawing the baseline from which the breadth of the territorial sea is

measured.”4

Article 47 of the Convention on the Law of the Sea allows the use of the

“straight baseline method” for archipelagic states with certain limitations. The

article in full reads:

1. An archipelagic State may draw straight archipelagic

baselines joining the outermost points of the outermost islands and

drying reefs of the archipelago provided that within such baselines are

included the main islands and an area in which the ratio of the area of

the water to the area of the land, including atolls, is between 1 to 1

and 9 to 1.

2. The length of such baseline shall not exceed 100 nautical

miles, except that up to 3 percent of the total number of baselines

enclosing any archipelago may exceed that length, up to a maximum

length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any

appreciable extent from the general configuration of the archipelago4. Such baselines shall not be drawn to and from low- tide

elevations, unless lighthouses or similar installations which are

permanently above sea level have been built on them or where

1951 ICJ at 130. The argument from this case is by analogy and, therefore, only as strong as the

analogy. See Committee Report No. 01 and Speech of Delegate Laggui, Session of February 14,1972.

'See also 1958 Territorial Sea Convention.

122 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

a low-tide elevation is situated wholly or partially at a distance not

exceeding the breadth of the territorial sea of another State.

5. The system of such baselines shall not be applied to an

archipelagic State in such a manner as to cut-off from the high seas or

the exclusive economic zone the territorial sea of another State.

6. If a part of the archipelagic waters of an archipelagic

State lies between two parts of an immediately adjacent neighboring

State, existing rights and all other legitimate interests which the latter

State has traditionally exercised in such waters and all rights

stipulated by agreement between those States shall continue and be

respected.

7. F

or the purpose of computing the ratio of water to land under

paragraph 1, land areas may include waters lying within the hinging

reefs of islands and atolls, including that part of a steepsided oceanic

plateau which is enclosed or nearly enclosed by a chain of limestone

islands and drying reefs lying on the perimeter of the plateau.

8. The baselines drawn in accordance with this article shall

be shown on charts of a scale or scales adequate for ascertaining their

position. Alternatively, lists of geographical co-ordinates of points,

specifying the geodetic datum, may be substituted.

9. The archipelagic State shall give due publicity to such

charts or lists of geographical co-ordinates and shall deposit a copy of

each such chart or list with the Secretary-General of the United

Nations.

Sovereignty over Territorial Sea

The sovereignty of the coastal state over its territorial sea and the airspace

above it as well as the seabed under is the same as its sovereignty over its land

territory. (Article 2, LOS) However, the sea is subject to the right of innocent

passage by other states. The rule on innocent passage applies to ships and aircraft.

Submarines, moreover, must surface.

Innocent passage is passage that is not prejudicial to the peace, good order

or security of the coastal state. Article 19(2) enumerates acts that are not

considered innocent passage thus:

2. Passage of a foreign ship shall be considered to be

prejudicial to the peace, good order or security of the coastal State if

in the territorial sea it engages in any of the following activities:

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TERRITORY: LAW OF THE SEA

123

(a) any threat or use of force against the sovereignty,

territorial integrity or political independence of the coastal

State, or in any other manner in violation of the principles of

international law embodied in the Charter of the United

Nations;

(b) any exercise or practice with weapons of any

kind;

aimed at collecting information to the

prejudice of the defense or security of the coastal State;

(d) any act of

propaganda aimed at affecting the

defense or security of the coastal State;

(e) the launching, landing or taking on board of any

aircraft;

(f) the

launching, landing or taking on board of any

military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or

sanitary laws and regulations of the coastal State;

(h) any act of willful and serious pollution contrary to

this Convention;

(i) any fishing

activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of

communication or any other facilities or installations of the

coastal State;

(1) any other activity not having a direct bearing on

passage.

Coastal states have the unilateral right to verify the innocent character of

passage, and it may take the necessary steps to prevent passage that it determines

to be not innocent.

The rule on innocent passage is also applicable to straits. In the Corfu

Channel Case,5

the Court said:

It is, in the opinion of the Court, generally recognized and in

accordance with international custom that States in time of peace

5UJC. v. Albania, [1949] ICJ Rep.

124 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

have a right to send their warships through straits used for international navigation between two parts of the high seas without the

previous authorization of a coastal State, provided that the passage is

innocent. Unless otherwise prescribed in an international convention,

there is no right for a coastal State to prohibit such passage through

straits in time of peace.

This rule is now found in Article 45 of the 1982 Convention.

Internal waters.

Internal waters are all waters (part of the sea, rivers, lakes, etc.) landwards

from the baseline of the territory. Sovereignty over these waters is the same in

extent as sovereignty over land, and it is not subject to the right of innocent

passage. However, in Saudi Arabia v. Aramco (Arbitration 1963), the arbitrator

said that according to international law — ports of every state must be open to

foreign vessels and can only be closed when vital interests of the state so requires.

But according to the Nicaragua v. US.,6

a coastal state may regulate access to its

ports.

Archipelagic waters.

Article 8(2) of the Convention which says: “Where the establishment of a

straight baseline in accordance with the method set forth in Article 7 has the effect

of enclosing as internal waters areas which had not previously been considered as

such, a right of innocent passage as provided in this Convention shall exist in

those waters.” Article 53 of the Convention refers to this type of internal water as

“archipelagic waters” and says that “[a]n archipelagic State may designate sea

lanes and air routes thereabove, suitable for the continuous and expeditious

passage of foreign ships and aircraft through or over its archipelagic waters and

the adjacent territorial sea.”

This provision was seen as posing a problem for Philippine law because

Article I of the Philippine Constitution, which took effect in 1973 prior to the

1982 Convention on the Law of the Sea, considers all waters connecting the

islands as internal waters. The Philippine government was clearly aware of these

possible conflicts. Hence, upon its

‘Merits, [1986] ICJ Rep.

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TERRITORY: LAW OF THE SEA

125

ratification of the Convention on the Law of the Sea on August 5,1984, it added

the following declaration:7

1. The signing of the Convention by the Government of the

Republic of the Philippines shall not in any manner impair or prejudice the

sovereign rights of the Republic of the Philippines under and arising from

the Constitution of the Philippines;

2. Such signing shall not in any manner affect the sovereign rights

of the Republic of the Philippines as successor to the United States of

America, under and arising out of the Treaty of Paris between Spain and the

United States of America of December 10, 1988, and the Treaty of

Washington between the United States of America and Great Britain of

January 2,1930;

3. Such signing shall not diminish or in any manner affect the

rights and obligations of the Contracting Parties under the Mutual Defense

Treaty between the Philippines and the United States of America of August

30,1951, and its related interpretative instruments; nor those under any

pertinent bilateral or multilateral treaty or agreement to which the

Philippines is a party;

6. The provisions of the Convention on archipelagic passage

through sea lanes do not nullify or impair the sovereignty of the Philippines

as an archipelagic State over the sea lanes and do not deprive it of authority

to enact legislation to protect its sovereignty, independence, and security;

7. The concept of archipelagic waters is similar to the concept of

internal waters under the Constitution of the Philippines, and removes straits

connecting these waters with the economic zone or high sea from the rights

of foreign vessels to transit passage for international navigation;

7U.N. Office for Oceans Affairs and the Law of the Sea, Law of the Sea Bulletin, Special Issue 1, March

1987, Annex II, p. 6, quoted in Sweeney, Oliver, Leech, THE INTERNATIONAL LEGAL SYSTEM, 193 (3RD ED. 1988).

126 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

However, concern about this problem may not be necessary because Article

8(2) itself says that the new rule applies only to “areas which had not previously

been considered as ‘internal waters.”’ The 1973 Constitution pre-dates the 1982

Convention.

Bays.

The waters of a bay are considered internal waters of a coastal state. The

rule on bays is found in Article 10 of the 1982 LOS:

2. For the purposes of this Convention, a bay is a well- marked

indentation whose penetration is in such proportion to the width of its

mouth as to contain land-locked waters and constitute more than a mere

curvature of the coast. An indentation shall not, however, be regarded as a

bay unless its area is as large as, or larger than, that of the semi-circle whose

diameter is a line drawn across the mouth of that indentation.

3. For the purpose of measurement, the area of an indentation is

that lying between the low-water mark around the shore of the indentation

and a line joining the low-water mark of its natural entrance points. Where,

because of the presence of islands, an indentation has more than one mouth,

the semi-circle shall be drawn on a line as long as the sum total of the

lengths of the lines across the different mouths. Islands within an

indentation shall be included as if they were part of the water area of the

indentation.

4. If the distance between the low-water marks of the natural

entrance points of a bay does not exceed 24 nautical miles, a closing line

may be drawn between these two low-water marks, and the waters enclosed

thereby shall be considered as internal waters.

5. Where the distance between the low-water marks of the natural

entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24

nautical miles shall be drawn within the bay in such a manner as to enclose

the maximum area of water that is possible with a line of that length.

6. The foregoing provisions do not apply to so-called “historic”

bays, or in any case where the system of straight baselines provided for in

Article 7 is applied.

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127

Historic bays are bays which are treated by the coastal state as internal

waters on the basis of historic rights acknowledged by other states. A listing of

historic bays may be found in 4 Whitman, DIGEST OF INTERNATIONAL LAW 233-39 (1965).

Contiguous zone.

The contiguous zone is an area of water not exceeding 24 nautical miles

from the baseline. It thus extends 12 nautical miles from the edge of the territorial

sea. The coastal state exercises authority over that area to the extent necessary to

prevent infringement of its customs, fiscal, immigration or sanitation authority

over its territorial waters or territory and to punish such infringement. Article 33 (1

and 2), 1982 LOS says:

1. In a zone contiguous to its territorial sea, described as the

contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration

or sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations

committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles

from the baselines from which the breadth of the territorial sea is measured.

It should be understood, however, that, according to the International Law

Commission’s Commentary on the Draft, the power of control given to the littoral

state does not change the nature of the waters. Beyond the territorial sea, the

waters are high sea and are not subject to the sovereignty of the coastal state.

Exclusive economic zone or “patrimonial sea.”

The doctrine on the exclusive economic zone is a recent development. Prior

to the acceptance of this doctrine, all waters beyond the contiguous zone were

considered as high seas over which no state had control. The doctrine developed

owing to the desire of coastal states for better conservation and management of

coastal fisheries.

128 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The exclusive economic zone is an area extending not more than 200

nautical miles beyond the baseline. The coastal state has rights over the economic

resources of the sea, seabed and subsoil — but the right does not affect the right of

navigation and overflight of other states. This is a compromise between those who

wanted a 200-mile territorial sea and those who wanted to reduce the powers of

coastal states.

The provisions on the exclusive economic zone are both a grant of rights to

and an imposition of obligations on coastal states relative to the exploitation,

management and preservation of the resources found within the zone.

Coastal states have two primary obligations. First, they must ensure through

proper conservation and management measures that the living resources of the

EEZ are not subjected to over-exploitation. This includes the duty to maintain and

restore populations of harvested fisheries at levels which produce a “maximum

sustainable yield.” Second, they must promote the objective of “optimum

utilization” of the living resources. They therefore should determine the allowable

catch of living resources. If the coastal state does not have the capacity to harvest

the allowable catch, it must grant access to other states. The details on this matter

are found in Articles 55 to 75.

The delimitation of the overlapping exclusive economic zone between

adjacent states is determined by agreement.

The Continental (Archipelagic) Shelf.

The continental shelf, archipelagic or insular shelf for archipelagos, refers to

(a) the seabed and subsoil of the submarine areas adjacent to the coastal state but

outside the territorial sea, to a depth of two hundred meters or, beyond that limit,

to where the depth allows exploitation, and (b) the seabed and subsoil of areas

adjacent to islands. The coastal state has the right to explore and exploit its natural

resources, to erect installations needed, and to erect a safety zone over its

installations with a radius of 500 meters. The right does not affect the right of

navigation of others. Moreover, the right does not extend to non-resource material

in the shelf area such as wrecked ship and their cargoes.

The Deep Seabed: “Common Heritage of Mankind.”

These are areas of the sea-bed and the ocean floor, and their subsoil, which

lie beyond any national jurisdiction. These are the com

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TERRITORY: LAW OF THE SEA

129

mon heritage of mankind and may not be appropriated by any state or person.

Activities in the area are governed by Articles 135 tol53 of the 1982 Convention.

Islands.

Article 121. Regime of islands

1. An island is a naturally formed area of land, surrounded

by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea,

the contiguous zone and the continental shelf of an island are

determined in accordance with the provisions of the Convention

applicable to other land territory.

3. Rocks which cannot sustain human habitation or

economic life of their own shall have no exclusive economic zone or

continental shelf.

Islands can be very important because of the possibility of exploiting oil and

gas resources around them. This explains the controversy over Spratleys. It is

noteworthy that islands can have their own territorial sea, exclusive economic zone

and continental shelf. However, rocks “which cannot sustain human habitation or

economic life” only have a territorial sea. But there is no clear international law

definition of “economic life” referred to in n. 3.

Artificial islands or installations are not “islands” in the sense of Article 121.

However, coastal states may establish safety zones around artificial islands and

prescribe safety measures around them. (Article 60[4] and [5])

The High Seas.

Article 1 of the Geneva Convention on the High Seas defines the high seas

as “all parts of the sea that are not included in the territorial sea or in the internal

waters of a State.”

The highs seas are subject to six freedoms: (1) freedom of navigation; (2)

freedom of overflight; (3) freedom of fishing; (4) freedom to lay submarine cables

and pipelines; (5) freedom to construct artificial islands and structures; and (6)

freedom of scientific research.

130 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The first four of the above freedoms were mentioned in the 1958

Convention of the High Seas and the last two were added by the 1982 LOS. But

these two are subject to some restrictions.

The flag state has exclusive jurisdiction over its ships on the high seas to the

extent not limited by agreement. By legal fiction, a ship is a floating part of the

flag state. The law of the flag state is applied to it “on the pragmatic basis that

there must be some law on shipboard, that it cannot change at every change of

waters, and no experience shows a better rule than that of the state that owns it.”8

Freedom of overflight belongs to both civilian and military aircraft.

Freedom of fishing also includes the duty to cooperate in taking measures to

ensure the conservation and management of the living resources of the high seas.

Article 86 of the 1982 LOS, on the six freedoms, says: “The provisions of

this part apply to all parts of the sea that are not included in the exclusive

economic zone, in the territorial sea or in the internal waters of a state, or in the

archipelagic waters of an archipelagic state.” This, however, is not a definition of

the scope of the area called “high seas.” As noted above, the contiguous zone is

part of the high seas. What Article 86 does is to specify the areas that are not

covered by all the six freedoms.

Hot Pursuit

Article 111 allows hot pursuit of a foreign vessel where there is good reason

to believe that the ship has violated laws or regulations of a coastal state. The

pursuit must commence when the foreign vessel is within the internal waters, the

archipelagic waters, the territorial waters or the contiguous zone of the pursuing

state. It may continue into the high seas if the pursuit has not been interrupted. If

the foreign ship is in the contiguous zone, it may be pursued only for violations of

the rights of the coastal state in the contiguous zone.

Mutatis mutandis, the right of hot pursuit shall also apply to violations of

applicable laws and regulations of the coastal state in the

‘Lauritzen v. Larsen, 345 U.S. 571,585 (1953).

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131

exclusive economic zone or the continental shelf including the safety zones of the

shelf.

Hot pursuit must stop as soon as the ship pursued enters the territorial

waters if its own state or of a third state.

Hot pursuit may be carried out only by warships or military aircraft, or any

other ship or aircraft properly marked for that purpose.

In the case of The I’m Alone (29 AJIL 326), although the pursuit was found

to be legitimate, the sinking of the pursued vessel was found to be “not justified by

anything in the Convention ... [nor] by any principle of international law.” The

Commission ordered the United States to apologize to the Canadian government

and to pay damages.

Settlement of Disputes.

Peaceful settlement of disputes is compulsory. Under Part XV of the 1982

Convention States are required to settle peacefully disputes concerning the

Convention. If a bilateral settlement fails, Article 285 requires submission of the

dispute for compulsory settlement in one of the tribunals clothed with jurisdiction.

The alternatives are the International Tribunal for the Law of the Sea, the ICJ, or

an arbitral tribunal constituted under the Convention.

Chapter 9 JURISDICTION OF STATES

Jurisdiction means the authority to affect legal interests. Corresponding to

the powers of government, jurisdiction can be: (^jurisdiction to prescribe norms of

conduct (legislative jurisdiction), (2) jurisdiction to enforce the norms prescribed

(executive jurisdiction), and (3) jurisdiction to adjudicate (judicial jurisdiction).

The scope of a state’s jurisdiction over a person, thing, or event depends on

the interest of the state in affecting the subject in question. Where there are

competing interests among various states, there may be a need to establish

priorities on the basis of the quality and quantity of the linkages the various states

have. For that matter, it is possible for more than one sovereignty to have

jurisdiction over the same subject matter.

International law limits itself to criminal rather than civil jurisdiction. Civil

jurisdiction is a subject for private international law or conflicts of law.

Writers have come up with five principles as follows:

1) the territoriality

principle;

2) the nationality

principle;

3) the protective principle;

4) the universality

principle; and

5) the passive personality

principle.

The first three are generally supported in customary law; the fourth finds

application in special circumstances; but the fifth does not enjoy wide acceptance.

Of co rse j risdiction ma also be acq ired thro gh treat

132

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JURISDICTION OF STATES

133

The Territoriality Principle.

The fundamental source of jurisdiction is sovereignty over territory. A state

has absolute, but not necessarily exclusive, power to prescribe, adjudicate and

enforce rules for conduct that occurs within its territory. For this reason, it is

necessary that boundaries be determined. The Third Restatement summarizes the

rules on boundaries where states are not islands but parts of a larger land mass

thus:

(1) the boundary separating the land areas of two states

is determined by acts of the states expressing their consent to its

location.

(2) Unless a consent to a different rule has been expressed,

(a) when the boundary between two states is a navigable

river, its location is the middle of the channel of navigation (Thalweg

doctrine)',

(b) when the boundary between two states is a nonnavigable river or a lake, its location is the middle of the river or lake.

In this regard it is important to recall what was said in the Las Palmas case:

to have jurisdiction, occupation is not enough; control must also be established.

The Philippines has no problem with surface land boundaries because we

have no contiguous neighbors. However, because we are very close to other Asian

states, knowing where our boundaries end may be necessary for purposes of

determining our exclusive economic zone, treated earlier in Chapter 9.

Effects Doctrine

An aspect of the territoriality principle is the “effects doctrine A state also

has jurisdiction over acts occurring outside its territory but having effects within it.

This was enunciated in the Lotus case, an early case dealing with territorial

jurisdiction.

The effects doctrine itself consists of two principles. First, there is the

subjective territorial principle which says that a state has jurisdiction to prosecute

and punish for crime commenced within the state but completed or consummated

abroad. The second is the objective territorial principle which says that a state has

jurisdiction to prosecute and

134 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

punish for crime commenced without the state but consummated within its

territory. See the Trail Smelter Arbitration.

THE LOTUS CASE FRANCE V. TURKEY PCU (1927)

Background

On August 2, 1926, just before midnight, a French mail

steamer Lotus, on the way to Constantinople, collided with the

Turkish cutter Boz-Kourt on the high seas. The Boz-Kourt sank with

the loss of eight sailors, all Turkish nationals. The Lotus subsequently

arrived in Constantinople at which point Turkish authorities arrested

Lieutenant Demons, the French officer in charge of the Lotus at the

time of the collision, and Hassan Bey, the captain of the Boz-Kourt.

Both were charged with manslaughter.

Lieutenant Demons argued that the Turkish Courts had no

jurisdiction. This argument was rejected and he was sentenced to

eighty days imprisonment and a fine of twenty-two pounds. Hassan

Bey received a slightly heavier sentence.

The French Government objected to the actions of the Turkish

Court. The French and the Turks agreed to submit the dispute to the

Permanent Court of International Justice (the precursor to the ICJ).

In submitting the dispute to the PCIJ, an agreement was drawn

up according to which the Court had to decide:

1. Has Turkey by instituting criminal proceedings in pursuance of Turkish law against M. Demons, officer of the watch on

board the Lotus at the time of the collision, in consequence of the loss

of the Boz-Kourt having involved the death of eight Turkish sailors

and passengers violated international law?

Judgment:

The Court, having to consider whether there are any rules of

international law which may have been violated by the prosecution in

pursuance of Turkish law of Lieutenant Demons, is confronted in the

first place by a question of principle which . . . has proved to be a

fundamental one. The French Government contends that the Turkish

Courts, in order to have jurisdiction, should be able to point to some

title to jurisdiction recognized by international law in favor of

Turkey. On the other hand, the Turkish Government

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takes the view that Turkey has jurisdiction whenever such jurisdiction

does not come into conflict with a principle of international law.

Though it is true that in all systems of law, the principle of the

territorial character of criminal law is fundamental, it is equally true

that all or nearly all these systems of law extend their action to

offenses committed outside the territory of the State which adopts

them, and they do so in ways which vary from State to State. The

territoriality of criminal law, therefore, is not an absolute principle of

international law and by no means coincides with territorial sovereignty.

The Court therefore must ... ascertain whether or not there

exists a rule of international law limiting the freedom of States to

extend the criminal jurisdiction of their courts to a situation uniting

the circumstances of the present case.

... [T]he characteristic features of the situation of fact are as

follows there has been a collision on the high seas between two

vessels flying different flags, on one of which was one of the persons

alleged to be guilty of the offense, whilst the victims were on board

the other.

It is certainly true that — apart from special cases which are

defined by international law — vessels on the high seas are subject to

no authority except that of the State whose flag they fly. In virtue of

the principle of the freedom of the seas, that is to say, the absence of

any territorial sovereignty upon the high seas, no State may exercise

any kind of jurisdiction over foreign vessels upon them....

But it by no means follows that a State can never in its own

territory exercise jurisdiction over acts which have occurred on board

a foreign ship on the high seas. A corollary of the principle of the

freedom of the seas is that a ship on the high seas is assimilated to the

territory of the State the flag of which it flies, for, just as in its own

territory, that State exercises its authority upon it, and no other State

may do so. All that can be said is that by virtue of the principle of the

freedom of the seas, a ship is placed in the same position as national

territory, but there is nothing to support the claim according to which

the rights of the State under whose flag the vessel sails may go farther

than the rights which it exercises within its territory properly socalled. It follows that what occurs on board a

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

vessel upon the high seas must be regarded as if it occurred on the

territory of the State whose flag the ship flies. If, therefore, a guilty

act committed on the high seas produces its effects on a vessel flying

another flag or in foreign territory, the same principles must be

applied as if the territories of two different States were concerned, and

the conclusion must therefore be drawn that there is no rule of

international law prohibiting the State to which the ship on which the

effects of the offense have taken place belongs, from regarding the

offense as having been committed in its territory and prosecuting,

accordingly, the delinquent.

This conclusion could only be overcome if it were shown that

there was a rule of customary international law which, going further

than the principle stated above, established the exclusive jurisdiction

of the State whose flag was flown. The French Government has

endeavored to prove the existence of such a rule, having recourse for

this purpose to the teachings of publicists, to decisions of municipal

and international tribunals, and especially to conventions which,

whilst creating exceptions to the principle of the freedom of the seas

by permitting the war and police vessels of a State to exercise a more

or less extensive control over the merchant vessels of another State,

reserve jurisdiction to the courts of the country as is flown by the

vessel proceeded against.

In the Court’s opinion, the existence of such a rule has not been

conclusively proved.

In the first place, as regards teachings of publicists, and apart

from the question as to what their value may be from the point of

view of establishing the existence of a rule of customary law, it is no

doubt true that all or nearly all writers teach that ships on the high

seas are subject exclusively to the jurisdiction of the State whose flag

they fly. But the important point is the significance attached by them

to this principle; now it does not appear that in general, writers

bestow upon this principle a scope differing from or wider than that

explained above and which is equivalent to saying that the jurisdiction

of a State over vessels on the high seas is the same in extent as its

jurisdiction in its own territory. On the other hand, there is no lack of

writers who, upon a close study of the special question whether a

State can prosecute for offenses committed on board a foreign ship on

the high seas, definitely come to the conclusion that such offenses

must be regarded as if they had been committed in the territory of the

State whose flag the ship flies, and that consequently, the general

rules of each legal system in regard to offenses committed abroad are

applicable.

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137

In regard to precedents, it should first be observed that, leaving

aside the collision cases ... none of them relates to offenses affecting

two ships flying the flags of different countries, and consequently

they are not of much importance in the case before the Court. ...

On the other hand, there is no lack of cases in which a State has

claimed a right to prosecute for an offense, committed on board a

foreign vessel, which it regarded as punishable under its legislation....

The conclusion at which the Court has therefore arrived is that

there is no rule of international law in regard to collision cases to the

effect that criminal proceedings are exclusively within the jurisdiction

of the State whose flag is flown....

The offense for which Lieutenant Demons appears to have been

prosecuted was an act of negligence or imprudence — having its

origin on board the Lotus, whilst its effects made themselves felt on

board the Boz-Kourt. These two elements are, legally, entirely

inseparable so much so that their separation renders the offense nonexistent. Neither the exclusive jurisdiction of either State, nor the

limitations of the jurisdiction of each to the occurrences which took

place on the respective ships would appear calculated to satisfy the

requirements of justice and effectively to protect the interests of the

two States. It is only natural that each should be able to exercise

jurisdiction and to do so in respect of the incident as a whole. It is

therefore a case of concurrent jurisdiction....

Jurisdiction over foreign vessels in Philippine Territory

Regarding crimes committed on foreign vessels within Philippine territory,

the Supreme Court had this to say:

There are two fundamental rules on this particular matter in connection with

international law; to wit, the French rule, according to which crimes committed

aboard a foreign merchant vessel should not be prosecuted in the courts of the

country within whose territorial jurisdiction they were committed unless their

commission affects the peace and security of the territory; and the English rule,

based on the territorial principle and followed in the United States, according to

which, crimes perpetrated under such circumstances are in general triable in the

courts of the country within whose territory they were committed. Of these

138 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

two rules, it is the last one that obtains in this jurisdiction, because at present the

theories and jurisprudence prevailing in the United States on the matter are

authority in the Philippines which is now a territory of the United States.

(Syllabus, People v. Wong Cheng, 46 Phil 729 [1922])

TRAIL SMELTER ARBITRATION US v. Canada (1938-41)

(Abridged)

The President of the United States of America, and His Majesty

the King of Great Britain, Ireland and the British dominions beyond

the Seas, Emperor of India, in respect of the Dominion of Canada.

Considering that the Government of the United States has

complained to the Government of Canada that fumes discharged from

the smelter of the consolidated Mining and Smelting company at

Trail, British Columbia, have been causing damage in the State of

Washington, and

Recognizing the desirability and necessity of effecting a permanent settlement,

Have decided to conclude a convention for the purposes

aforesaid...

The Governments of the United States and of Canada, hereinafter referred to as “the Governments,” mutually agree to constitute

a tribunal... for the purpose of deciding the questions referred to it...

The Tribunal shall finally decide the questions, hereinafter

referred to as “the Questions,” set forth hereunder, namely:

1. Whether damage caused by the Trail Smelter in

the State of Washington has occurred since the first day of

January, 1932, and, if so, what indemnity should be paid

therefor?

2. In the event of the answer to the first part of the

preceding Question being in the affirmative, whether the Trail

Smelter should be required to refrain from causing damage in

the State of Washington in the future and, if so, to what extent?

3. I

n the light of the answer to the preceding Question, what

measures or regime, if any, should be adopted or maintained by

the Trail Smelter?

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JURISDICTION OF STATES

4. What indemnity or compensation, if any, should

be paid on account of any decision or decisions rendered by

the Tribunal pursuant to the next two preceding Questions?

The controversy is between two governments involving damage

occurring in the territory of one of them (the United States of

America) and alleged to be due to an agency situated in the territory

of the other (the Dominion of Canada), for which damage the latter

has assumed by the Convention an international responsibility....

In conclusion, the Tribunal answers Question 1 in Article III, as

follows: Damage caused by the Trail Smelter in the State of

Washington has occurred since the first day of January, 1932, and up

to October 1,1937, and the indemnity to be paid therefor is seventyeight thousand dollars ($78,000), and is to be complete and final

indemnity and compensation for all damage which occurred between

such dates. ...

As Professor Eagleton puts it Responsibility of States in

International Law, 1928, p. 80: “A State owes at all times a duty to

protect other States against injurious acts by individuals from within

its jurisdiction.” A great number of such general pronouncements by

leading authorities concerning the duty of a State to respect other

States and their territory have been presented to the Tribunal.... [T]his

principle, as such, has not been questioned by Canada. But the real

difficulty often arises rather when it comes to determine what... is

deemed to constitute an injurious act.

Considering the circumstances of the case, the Tribunal holds

that the Dominion of Canada is responsible in international law for

the conduct of the Trail Smelter.... It is, therefore, the duty of the

government of the Dominion of Canada to see to it that this conduct

should be in conformity with the obligation of the Dominion under

international law as herein determined.

The Tribunal, therefore, answers question No. 2 as follows:

(2) so long as the present conditions in the Columbia River Valley

prevail, the Trail Smelter shall be required to refrain from causing any

damage through fumes in the State of Washington;...

140 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The Nationality Principle.

The nationality principle says that every state has jurisdiction over its

nationals even when those nationals are outside the state. Blackmer v. United

States, infra, is illustrative of this principle.

BLACKMER V. UNITED STATES 284 U.S. 421 (1932)

Mr. Chief Justice HUGHES delivered the opinion of the Court.

The petitioner, Harry M. Blackmer, a citizen of the United

States resident in Paris, France, was adjudged guilty of contempt of

the Supreme Court of the District of Columbia for failure to respond

to subpoenas served upon him in France and requiring him to appear

as a witness on behalf of the United States at a criminal trial in that

court. Two subpoenas were issued, for appearances at different times,

and there was a separate proceeding with respect to each. The two

cases were heard together, and a fine of $30,000 with costs was

imposed in each case, to be satisfied out of the property of the

petitioner which had been seized by order of the court. ...

The subpoenas were issued and served, and the proceedings to punish

for contempt were taken, under the provisions of the Act of July 3,

1926, c. 762, 44 Stat. 835, U.S.C., tit. 28, 711-718 (28 USCA 711-

718).

The statute provided that [284 U.S. 421,434] whenever the

attendance at the trial of a criminal action of a witness abroad, who is

‘a citizen of the United States or domiciled therein,’ is desired by the

Attorney General, or any assistant or district attorney acting under

him, the judge of the court in which the action is pending may order a

subpoena to issue, to be addressed to a consul of the United States

and to be served by him personally [284 U.S. 421,

435] upon the witness with a tender of traveling expenses. Sections 2,

3 of the act (28 USCA 712,713).

This statute and the proceedings against the petitioner are assailed as being repugnant to the Constitution of the United States.

First. The principal objections to the statute are that it violates the due process

clause of the Fifth Amendment. These contentions are:

(1) That the ‘Congress has no power to authorize United States

consuls to serve process except as permitted by treaty’; (2) that the

act does not provide ‘a valid method of acquiring judicial jurisdic-

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JURISDICTION OF STATES

tion to render personal judgment against defendant and judgment

against his property’; (3) that the act ‘does not require actual or any

other notice to defendant of the offense or of the Government’s claim

against his property’; (4) that the provisions ‘for hearing and

judgment in the entire absence of the accused and without his consent’ are invalid; and (5) that the act is ‘arbitrary, capricious and

unreasonable.’

While it appears that the petitioner removed his residence to

France in the year 1924, it is undisputed that he was, and continued to

be, a citizen of the United States. He continued to owe allegiance to

the United States. By virtue of the obligations of citizenship, the

United States retained its authority over him, and he was bound by its

laws made applicable to him in a foreign country. Thus, although

resident abroad, the petitioner remained subject to the taxing power of

the United States. Cook v. Tait, 265 US. 47, 54, 56 S., 44 S. Ct. 444.

For disobedience to its laws through conduct abroad, he was subject

to punishment in the courts of the United States. United States v.

Bowman [284 US. 421, 437], 260 US. 94,102, 43 S. Ct. 39.

With respect to such an exercise of authority, there is no

question of international law, but solely of the purport of the

municipal law which establishes the duties of the citizen in relation to

his own government. While the legislation of the Congress, unless the

contrary intent appears, is construed to apply only within the

territorial jurisdiction of the United States, the question of its

application, so far as citizens of the United States in foreign countries

are concerned, is one of construction, not of legislative power.

American Banana Co. v. United Fruit Co., 213 US. 347, 357, 29 S. Ct.

511, 16 Ann. Cas. 1047; United States v. Bowman, supra; Robertson v.

Labor Board, 268 US. 619,622,45 S. Ct. 621. Nor can it be doubted

that the United States possesses the power inherent in sovereignty to

require the return to this country of a citizen, resident elsewhere,

whenever the public interest requires it, and to penalize him in case of

refusal. Compare Bartue and the Duchess of Suffolk’s Case, 2 Dyer’s

Rep. 176b, 73 Eng. Rep. 388; Knowles v. Luce, Moore 109, 72 Eng.

Rep. 473.4. What in England was the prerogative of the sovereign in

this respect pertains under our constitutional system to the national

authority which may be exercised by the Congress by virtue of the

legislative power to prescribe the duties of the citizens of the United

States.

It is also beyond controversy that one of the duties which the

citizen owes to his government is to support the administration of

142 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

justice by attending its courts and giving his testimony whenever he is

properly summoned. Blair v. United States, 250 US. 273,

281, 39 S. St. Ct. 468. And the Congress may provide for the performance of this duty and prescribe penalties for disobedience. ...

Each state has the right to decide who are its nationals using either the

principle ofjus sanguinis or jus soli or naturalization laws. However, for a state to

claim a person as a national, the state must have reasonable connection or an

“effective link” with that person. The consent of the individual alone is not enough

for him to be recognized by other states as a national of the state to which he

claims to belong. The Nottebohm case (Liechtenstein v. Guatemala), infra, is

illustrative.

Effective Nationality Link

The doctrine on effective nationality link is used to determine which of two

states of which a person is a national will be recognized as having the right to give

diplomatic protection to the holder of dual nationality. The doctrine is found in the

Nottebohm case.

THE NOTTEBOHM CASE

Liechtenstein v. Guatemala

I. CJ.

1955

(Abridged)

Background

Nottebohm was a German national by birth. In 1905, at the age

of 24, he moved to Guatemala, where he maintained a residence and a

business enterprise. On several occasions, he made business trips to

Germany. Between 1931 and 1939, he visited a brother in

Liechtenstein on several occasions. The rest of his relatives and

friends lived in Germany or Guatemala. In October 1939 (shortly

after the outbreak of World War II), he applied for citizenship by

naturalization in Liechtenstein.

Nottebohm asked for a waiver of the residence requirement,

paid his naturalization fees, and gave a deposit for the payment of

taxes. By the end of October 1939, he was granted citizenship and

received a Liechtenstein passport. On December 1,1939, he received

a visa from the Guatemalan Consul in Zurich. Nottebohm then

returned to Guatemala.

Several months before declaring war on Germany, the United States

blacklisted Nottebohm and froze his U.S. assets. Like

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143

the United States, Guatemala entered World War II against Germany

in December 1941. In 1943, Guatemala arrested Nottebohm as a

dangerous enemy alien and deported him to the United States, where

he was interned until 1946. He then returned to Liechtenstein, after

Guatemala refused his application for readmission. By 1949,

Guatemala had confiscated his property on the grounds that he was an

enemy alien.

In 1951, Liechtenstein brought this action against Guatemala,

asking the Court to declare that: “The Government of Guatemala in

arresting, detaining, expelling and refusing to readmit Mr. Nottebohm

and in seizing and retaining his property without compensation acted

in breach of their obligations under international law and

consequently in a manner requiring the payment of reparation.” For

its part, Guatemala asked the Court to declare the claim inadmissible

on grounds of the nationality of the claimant.

Decision

Guatemala has referred to a well-established principle of international law,...

that ‘it is the bond of nationality between the State and the individual which alone

confers upon the State the right of diplomatic protection’....

Liechtenstein considers itself to be acting in conformity with this principle

and contends that Nottebohm is its national by virtue of the naturalization

conferred upon him. ... Guatemala, on the other hand, requests] the Court ‘to

declare that the claim of the Principality of Liechtenstein is inadmissible’, and

set[s] forth a number of grounds relating to the nationality of Liechtenstein granted

to Nottebohm by naturalization. Thus, the real issue before the Court is the

admissibility of the claim of Liechtenstein in respect of Nottebohm.

In order to decide upon the admissibility of the application, the court must

ascertain whether the nationality conferred on Nottebohm by Liechtenstein ...

bestows upon Liechtenstein a sufficient title to the exercise of protection in respect

of Nottebohm as against Guatemala and therefore entitles it to seise the Court of a

claim relating to him.

Liechtenstein has argued that Guatemala formerly recognized the

naturalization which it now challenges and cannot therefore be heard to put

forward a contention which is inconsistent with its former attitude. ... Reliance has

been placed on the fact that... the Consul-General of

144 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Guatemala in Zurich entered a visa in the Liechtenstein passport of Mr.

Nottebohm for his return to Guatemala; that on January 29,1940 Nottebohm

informed the Ministry of External Affairs in Guatemala that he had adopted the

nationality of Liechtenstein and therefore requested that the entry relating to him

in the Register of Aliens should be altered accordingly, a request which was

granted on January 31; that on February 9, 1940 a similar amendment was made

to his identity document, and lastly that a certificate to the same effect was issued

to him by the civil registry of Guatemala on July 1,1940.

The acts of the Guatemalan authorities proceeded on the basis of the

statements made to them by the person concerned. ... All of these acts have

reference to the control of aliens in Guatemala and not to the exercise of

diplomatic protection. When Nottebohm thus presented himself before the

Guatemalan authorities, the latter had before them a private individual: there did

not thus come into being any relationship between governments. There was

nothing in all this to show that Guatemala then recognized that the naturalization

conferred upon Nottebohm gave Liechtenstein any title to the exercise of

protection.

In a letter of the Swiss consul of December 15, 1944, to the Minister of

External Affairs, reference is made to the entry on the Black Lists of “Frederick

Nottebohm, a national of Liechtenstein.” ... Guatemala, in its reply ... expressly

stated that it could not “recognise that Mr. Nottebohm, a German subject

habitually resident in Guatemala, has acquired the nationality of Liechtenstein

without changing his habitual residence.” ... There is here an express denial by

Guatemala of Nottebohm’s Liechtenstein nationality....

There is nothing here to show that before the institution of proceedings

Guatemala had recognised Liechtenstein’s title to exercise protection in favor of

Nottebohm and that it is thus precluded from denying such a title. ... Since no

proof has been adduced that Guatemala has recognized the title to the exercise of

protection relied upon by Liechtenstein as being derived from the naturalization

which it granted to Nottebohm, the Court must consider whether such an act of

granting nationality by Liechtenstein directly entails an obligation on the part of

Guatemala to recognize its effect, namely, Liechtenstein’s right to exercise its

protection....

It is for Liechtenstein, as it is for every sovereign State, to settle by its own

legislation the rules relating to the acquisition of its

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145

nationality, and to confer that nationality by naturalization granted by its own

organs in accordance with that legislation. It is not necessary to determine whether

international law imposes any limitations on its freedom of decision in this

domain. Furthermore, nationality has its most immediate, its most far-reaching

and, for most people, its only effects within the legal system of the State

conferring it. Nationality serves above all to determine that the person upon whom

it is conferred enjoys the rights and is bound by the obligations which the law of

the State in question grants to or imposes on its nationals. This is implied in the

wider concept that nationality is within the domestic jurisdiction of the State.

But the issue which the Court must decide is not one which pertains to the

legal system of Liechtenstein. It does not depend on the law or on the decision of

Liechtenstein whether that State is entitled to exercise its protection, in the case

under consideration. To exercise protection, to apply to the Court is to place

oneself on the plane of international law. It is international law which determines

whether a State is entitled to exercise protection and to seise the Court.

The naturalization of Nottebohm was an act performed by Liechtenstein in

the exercise of its domestic jurisdiction. The question to be decided is whether that

act has the international effect here under consideration. International practice

provides many examples of acts performed by States in the exercise of their

domestic jurisdiction which do not necessarily or automatically have international

effect, which are not necessarily and automatically binding on other States or

which are binding on them only subject to certain conditions....

When one State has conferred its nationality upon an individual and another

State has conferred its own nationality on the same person, it may occur that each

of these States, considering itself to have acted in the exercise of its domestic

jurisdiction, adheres to its own view and bases itself thereon in so far as its own

actions are concerned. In so doing, each State remains within the limits of its

domestic jurisdiction.

This situation may arise on the international plane and fall to be considered

by international arbitrators or by the courts of a third State. If the arbitrators or the

courts of such a State should confine themselves to the view that nationality is

exclusively within the domestic jurisdiction of the State, it would be necessary for

them to find that they were

146 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

confronted by two contradictory assertions made by two sovereign States,

assertions which they would consequently have to regard as of equal weight,

which would oblige them to allow the contradiction to subsist and thus fail to

resolve the conflict submitted to them....

International arbitrators have decided ... numerous cases of dual nationality,

where the question arose with regard to the exercise of protection. They have

given their preference to the real and effective nationality, that which accorded

with the facts, that based on stronger factual ties between the person concerned

and one of the States whose nationality is involved. Different factors are taken into

consideration, and their importance will vary from one case to the next: the

habitual residence of the individual concerned is an important factor, but there are

other factors such as the centre of his interests, his family ties, his participation in

public life, attachment shown by him for a given country and inculcated in his

children, etc.

Similarly, the courts of third States, when they have before them an

individual whom two other States hold to be their national, seek to resolve the

conflict by having recourse to international criteria and their prevailing tendency is

to prefer the real and effective nationality.

The same tendency prevails in the writings of publicists and in practice.

This notion is inherent in the provisions of Article 3, paragraph

2, of the Statute of the Court. National laws reflect this tendency when, inter alia,

they make naturalization dependent on conditions indicating the existence of a

link, which may vary in their purpose or in their nature but which are essentially

concerned with this idea. The Liechtenstein Law of January 4th, 1934, is a good

example.

The practice of certain States which refrain from exercising protection in

favor of a naturalized person when the latter has in fact, by his prolonged absence,

severed his links with what is no longer for him anything but his nominal country,

manifests the view of these States that, in order to be capable of being invoked

against another State, nationality must correspond with the factual situation. A

similar view is manifested in the relevant provisions of the bilateral nationality

treaties concluded between the United States of America and other States since

1868, such as those sometimes referred to as the Bancroft Treaties, and in the PanAmerican Convention, signed at Rio de Janeiro on August 13th, 1906, on the

status of naturalized citizens who resume residence in their country of origin.

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147

The character thus recognized on the international level as pertaining to

nationality is in no way inconsistent with the fact that international law leaves it to

each State to lay down the rules governing the grant of its own nationality. The

reason for this is that the diversity of demographic conditions has thus far made it

impossible for any general agreement to be reached on the rules relating to

nationality, although the latter by its very nature affects international relations. It

has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such

rules to the competence of each State. On the other hand, a State cannot claim that

the rules it has thus laid down are entitled to recognition by another State unless it

has acted in conformity with this general aim of making the legal bond of

nationality accord with the individual’s genuine connection with the State which

assumes the defense of its citizens by means of protection as against other States.

The requirement that such a concordance must exist is to be found in the

studies carried on in the course of the last thirty years upon the initiative and under

the auspices of the League of Nations and the United Nations. It explains the

provision which the Conference for the Codification of International Law, held at

The Hague in 1930, inserted in Article I of the Convention relating to the Conflict

of Nationality Laws, laying down that the law enacted by a State for the purpose of

determining who are its nationals “shall be recognized by other States in so far as

it is consistent with ... international custom, and the principles of law generally

recognized with regard to nationality.” In the same spirit, Article 5 of the

Convention refers to criteria of the individual’s genuine connections for the

purpose of resolving questions of dual nationality which arise in third States.

According to the practice of States, to arbitral and judicial decisions and to

the opinions of writers, nationality is a legal bond having as its basis a social fact

of attachment, a genuine connection of existence, interests and sentiments,

together with the existence of reciprocal rights and duties. It may be said to

constitute the juridical expression of the fact that the individual upon whom it is

conferred, either directly by the law or as the result of an act of the authorities, is

in fact more closely connected with the population of the State conferring

nationality than with that of any other State. Conferred by a State, it only entitles

that State to exercise protection vis-d-vis another State, if it constitutes a

148 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

translation into juridical terms of the individual’s connection with the State which

has made him its national.

Diplomatic protection and protection by means of international judicial

proceedings constitute measures for the defense of the rights of the State. As the

Permanent Court of International Justice has said and repeated, “by taking up the

case of one of its subjects and by resorting to diplomatic action or international

judicial proceedings on his behalf, a State is in reality asserting its own rights —

its right to ensure in the person of its subjects respect for the rules of international

law.”

Since this is the character which nationality must present when it is invoked

to furnish the State which has granted it with a title to the exercise of protection

and to the institution of international judicial proceedings, the Court must ascertain

whether the nationality granted to Nottebohm by means of naturalization is of this

character or, in other words, whether the factual connection between Nottebohm

and Liechtenstein in the period preceding, contemporaneous with and following

his naturalization appears to be sufficiently close, so preponderant in relation to

any connection which may have existed between him and any other State, that it is

possible to regard the nationality conferred upon him as real and effective, as the

exact juridical expression of a social fact of a connection which existed previously

or came into existence thereafter.

Naturalization is not a matter to be taken lightly. To seek and to obtain it is

not something that happens frequently in the life of a human being. It involves his

breaking of a bond of allegiance and his establishment of a new bond of

allegiance. It may have far-reaching consequences and involve profound changes

in the destiny of the individual who obtains it. It concerns him personally, and to

consider it only from the point of view of its repercussions with regard to his

property would be to misunderstand its profound significance. In order to appraise

its international effect, it is impossible to disregard the circumstances in which it

was conferred, the serious character which attaches to it, the real and effective, and

not merely the verbal preference of the individual seeking it for the country which

grants it to him.

At the time of his naturalization, does Nottebohm appear to have been more

closely attached by his tradition, his establishment, his interests, his activities, his

family ties, his intentions for the near future to Liechtenstein than of any other

State? ...

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The essential facts are as follows:

At the date when he applied for naturalization Nottebohm had

been a German national from the time of his birth. He had always

retained his connections with members of his family who had

remained in Germany and he had always had business connections

with that country. His country had been at war for more than a month,

and there is nothing to indicate that the application for naturalization

then made by Nottebohm was motivated by any desire to dissociate

himself from the Government of his country.

He had been settled in Guatemala for 34 years. He had carried

on his activities there. It was the main seat of his interests. He

returned there shortly after his naturalization, and it remained the

center of his interests and of his business activities. He stayed there

until his removal as a result of war measures in 1943. He

subsequently attempted to return there, and he now complains of

Guatemala’s refusal to admit him. There, too, were several members

of his family who sought to safeguard his interests.

In contrast, his actual connections with Liechtenstein were

extremely tenuous. No settled abode, no prolonged residence in that

country at the time of his application for naturalization; the

application indicates that he was paying a visit there and confirms the

transient character of this visit by its request that the naturalization

proceedings should be initiated and concluded without delay. No

intention of settling there was shown at that time or realized in the

ensuing weeks, months or years — on the contrary, he returned to

Guatemala very shortly after his naturalization and showed every

intention of remaining there. If Nottebohm went to Liechtenstein in

1946, this was because of the refusal of Guatemala to admit him. No

indication is given of the grounds warranting the waiver of the

condition of residence, required by the 1934 Nationality Law, which

waiver was implicitly granted to him. There is no allegation of any

economic interests or of any activities exercised or to be exercised in

Liechtenstein, and no manifestation of any intention whatsoever to

transfer all or some of his interests and business activities to

Liechtenstein. It is unnecessary in this connection to attribute much

importance to the promise to pay the taxes levied at the time of his

naturalization. The only links to be discovered between the

Principality and Nottebohm are the short sojourns already referred to

and the presence in Vaduz of one of his brothers: but his brother’s

presence is referred to in his application for naturalization only as a

reference to his good

150 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

conduct. Furthermore, other members of his family have asserted

Nottebohm’s desire to spend his old age in Guatemala.

These facts clearly establish, on the one hand, the absence of

any bond of attachment between Nottebohm and Liechtenstein and,

on the other hand, the existence of a long-standing and close

connection between him and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any

real prior connection with Liechtenstein, nor did it in any way alter

the manner of life of the person upon whom it was conferred in

exceptional circumstances of speed and accommodation. In both

respects, it was lacking in the genuineness requisite in an act of such

importance, if it is to be entitled to be respected by a State in the

position of Guatemala. It was granted without regard to the concept

of nationality adopted in international relations.

Naturalization was asked for not so much for the purpose of

obtaining a legal recognition of Nottebohm’s membership in fact in

the population of Liechtenstein, as it was to enable him to substitute

for his status as a national of a belligerent State that of a national of a

neutral State, with the sole aim of thus coming within the protection

of Liechtenstein but not of becoming wedded to its traditions, its

interests, its way of life or of assuming the obligations — other than

fiscal obligations — and exercising the rights pertaining to the status

thus acquired.

Guatemala is under no obligation to recognize a nationality

granted in such circumstances. Liechtenstein consequently is not

entitled to extend its protection to Nottebohm vis-a-vis Guatemala

and its claim must, for this reason, be held to be inadmissible.

The Court is not therefore called upon to deal with the other

pleas in bar put forward by Guatemala or the conclusions of the

Parties other than those on which it is adjudicating in accordance with

the reasons indicated above.

For these reasons, the Court, by eleven votes to three, holds

that the claim submitted by the Government of the Principality of

Liechtenstein is inadmissible.

As to corporations, a state has jurisdiction over corporations organized

under its laws. Many states assert jurisdiction over corporations whose principal

place of business or registered office is located in their territories. States have also

sought to regulate corporations organized or having their principal place of

business abroad when these corpora

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151

tions are owned or controlled by nationals. This last is controversial. More

controversial still are multi-national corporations which register various addresses

for different purposes. Thus, for instance, executive offices, sales operations,

manufacturing and distribution facilities may each be located in different localities.

These problems, however, are more properly under the domain of conflict of laws.

For maritime vessels, a state has jurisdiction over vessels flying its flag.

(See Lotus case, supra.) Each state determines requirements for registration. But

flags of convenience might be challenged on the ground of lack of sufficient link.

The same principle is generally applicable to aircraft and spacecraft.

Stateless persons

Stateless persons are those who do not have a nationality. They are either de

jure or de facto stateless. De jure stateless persons are those who have lost their

nationality, if they had one, and have not acquired a new one. De facto stateless

persons are those who have a nationality but to whom protection is denied by their

state when out of the state. This is the situation of many refugees.

Since they do not enjoy protection by any state, how are they protected

against violations of their human rights such as by deportation to parts unknown?

The following case offers an answer:

MEJOFF V. DIRECTOR OF PRISONS

90 Phil. 70 (1951)

TUASON, J.:

This is a second petition for habeas corpus by Boris Mejoff,

the first having been denied in a decision of this Court of July 30,

1949. The history of the petitioner’s detention was thus briefly set

forth in that decision, written by Mr. Justice Bengzon:

“The petitioner Boris Mejoff is an alien of Russian descent who

was brought to this country from Shanghai as a secret operative by the

Japanese forces during the latter’s regime in these Islands. Upon

liberation, he was arrested as a Japanese spy, by U.S. Army Counter

Intelligence Corps. Later, he was handed to the Commonwealth

Government for disposition in accordance with Commonwealth Act

No. 682. Thereafter, the People’s Court

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

ordered his release. But the Deportation Board taking his case up,

found that having no travel documents Mejoff was illegally in this

country, and consequently referred the matter to the immigration

authorities. After the corresponding investigation, the Board of

Commissioners of Immigration on April 5, 1948, declared that

Mejoff had entered the Philippines illegally in 1944, without

inspection and admission by the immigration officials at a

designation port of entry and, therefore, it ordered that he be deported

on the first available transportation to Russia. The petitioner was then

under custody, he having been arrested on March 18, 1948. In May

1948, he was transferred to the Cebu Provincial Jail together with

three other Russians to await the arrival of some Russian vessels. In

July and August of that year, two boats of Russian nationality called

at the Cebu Port. But their masters refused to take petitioner and his

companions alleging lack of authority to do so. In October 1948, after

repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has been

confined up to the present time, inasmuch as the Commissioner of

Immigration believes it is for the best interests of the country to keep

him under detention while arrangements for his departure are being

made.”

The Court held the petitioner’s detention temporary and said

that “temporary detention is a necessary step in the process of

exclusion or expulsion of undersirable aliens and that pending

arrangements for his deportation, the Government has the right to

hold the undersirable alien under confinement for a reasonable length

of time.” It took note of the fact, manifested by the Solicitor

General’s representative in the course of the oral argument, that “this

Government desires to expel the alien, and does not relish keeping

him at the people’s expense . . . making efforts to carry out the decree

of exclusion by the highest officer of the land.” No period was fixed

within which the immigration authorities should carry out the

contemplated deportation beyond the statement that “The meaning of

‘reasonable time’ depends upon the circumstances, specially the

difficulties of obtaining a passport, the availability of transportation,

the diplomatic arrangements with the governments concerned and the

efforts displayed to send the deportee away;” but the Court warned

that “under established precedents, too long a detention may justify

the issuance of a writ of habeas corpus.”

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr.

Justice Perfecto, and the writer of this decision dissented. Mr. Jus

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tice Feria and Mr. Justice Perfecto voted for outright discharge of the

prisoner from custody. Mr. Justice Paras qualified his dissent by

stating that he might agree “to a further detention of the herein

petitioner, provided that he be released if after six months, the

Government is still unable to deport him.” This writer joined in the

latter dissent but thought that two months constituted reasonable time.

Over two years having elapsed since the decision aforesaid was

promulgated, the Government has not found ways and means of

removing the petitioner out of the country, and none are in sight,

although, it should be said injustice to the deportation authorities, it

was through no fault of theirs that no ship or country would take the

petitioner.

Aliens illegally staying in the Philippines have no right of

asylum therein (Soewapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289,

290), even if they are “stateless,” which the petitioner claims to be. It

is no less true however, as impliedly stated in this Court’s decision,

supra, that foreign nationals, not enemy, against whom no charge has

been made other than that their permission to stay has expired, may

not indefinitely be kept in detention. The protection against

deprivation of liberty without due process of law and except for

crimes committed against the laws of the land is not limited to

Philippine citizens but extends to all residents, except enemy aliens,

regardless of nationality. Whether an alien who entered the country in

violation of its immigration laws may be detained for as long as the

Government is unable to deport him, is a point we need not decide.

The petitioner’s entry into the Philippines was not unlawful; he was

brought by the armed and belligerent forces of a de facto government

whose decrees were law during the occupation.

Moreover, by its Constitution (Art. II, Sec. 3), the Philippines

“adopts the generally accepted principles of international law as part

of the law of Nation.” And in a resolution entitled “Universal

Declaration Of Human Rights” and approved by the General

Assembly of the United Nations of which the Philippines is a

member, at its plenary meeting on December 10, 1948, the right to

life and liberty and all other fundamental rights as applied to all

human beings were proclaimed. It was there resolved that “All human

beings are bom free and equal in degree and rights” (Art. 1)\ that

“Everyone is entitled to all the rights and freedom set forth in this

Declaration, without distinction of any kind, such as race, colour, sex,

language, religion, political or other opinion,

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

nationality or social origin, property, birth, or other status” (Art.

2) ; that “Every one has the right to an effective remedy by the

competent national tribunals for acts violating the fundamental rights

granted him by the Constitution or by law” (Art. 8); that “No one

shall be subjected to arbitrary arrest, detention or exile” (Art. 9 ); etc.

The most recent case, as far as we have been able to find, was

that of Staniszewski vs. Watkins (1948), 80 Fed. Supp., 132, which is

nearly foursquare with the case at hand. In that case a stateless

person, formerly a Polish national, resident in the United States since

1911 and many times serving as a seaman on American vessels both

in peace and in war, was ordered excluded from the United States and

detained at Ellis Island at the expense of the steamship company,

when he returned from a voyage on which he had shipped from New

York for one or more European ports and return to the United States.

The grounds for his exclusion were that he had no passport or

immigration visa, and that in 1937 had been convicted of perjury

because in certain documents he represented himself to be an

American citizen. Upon his application for release on habeas corpus,

the Court released him upon his own recognizance. Judge Leibell, of

the United States District Court for the Southern District of New

York, said in part:

“When the return to the writ of habeas corpus came

before this court, I suggested that all interested parties ... make

an effort to arrange to have the petitioner ship out of some

country that would receive him as a resident. He is a nativeborn Pole but the Polish Consul has advised him in writing that

he is no longer a Polish subject. This Government does not

claim that he is a Polish citizen. This attorney says he is

stateless. The Government is willing that he go back to the

ship, but if he were sent back aboard ship and sailed to the Port

(Cherbourg, France) from which he last sailed to the United

States, he would probably be denied permission to land. There

is no other country that would take him, without proper

documents.

“It seems to me that this is a genuine hardship case and

that the petitioner should be released from custody on proper

terms....

“What is to be done with the petitioner? The government

has had him in custody almost seven months and prac

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tically admits it has no place to send him out of this country.

The steamship company, which employed him as one of a

group sent to the ship by the Union, with proper seaman’s

papers issued by the United States Coast Guard, is paying $3 a

day for petitioner’s board at Ellis Island. It is no fault of the

steamship company that petitioner is an inadmissible alien as

the immigration officials describe him....

“I intend to sustain the writ of habeas corpus and order

the release of the petitioner on his own recognizance. He will

be required to inform the immigration officials at Ellis Island

by mail on the 15th of each month, stating where he is

employed and where he can be reached by mail. If the

government does succeed in arranging for petitioner’s

deportation to a country that will be ready to receive him as a

resident, it may then advise the petitioner to that effect and

arrange for his deportation in the manner provided by law.”

Although not binding upon this Court as a precedent, the case

aforecited affords a happy solution to the quandary in which the

parties here find themselves, solution which we think is sensible,

sound and compatible with law and the Constitution. For this reason,

and since the Philippine law on immigration was patterned after or

copied from the American law and practice, we choose to follow and

adopt the reasoning and conclusions in the Stanisze- wski decision

with some modifications which, it is believed, are in consonance with

the prevailing conditions of peace and order in the Philippines.

Premises considered, the writ will issue commanding the

respondents to release the petitioner from custody upon these terms:

The petitioner shall be placed under the surveillance of the

immigration authorities or their agents in such form and manner as

may be deemed adequate to insure that he keep peace and be

available when the Government is ready to deport him. The

surveillance shall be reasonable and the question of reasonableness

shall be submitted to this Court or to the Court of First Instance of

Manila for decision in case of abuse. He shall also put up a bond for

the above purpose in the amount of P5,000 with sufficient surety or

sureties, which bond the Commissioner of Immigration is authorized

to exact by Section 40 of Commonwealth Act No. 613.

156 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The Protective Principle.

This principle says that a state may exercise jurisdiction over conduct

outside its territory that threatens its security, as long as that conduct is generally

recognized as criminal by states in the international community. (Restatement

402[3]) This conditional clause excludes acts committed in exercise of the liberty

guaranteed an alien by the law of the place where the act was committed.

The examples given of acts covered by the protective principle are plots to

overthrow the government, forging its currency, and plot to break its immigration

regulations. A sample case of this is that of “Lord Haw Haw,” an American citizen

who broadcast messages from Germany seeking to persuade the Allies to

surrender. Until 1940, he held a British passport. After the war, he was convicted

of high treason in the United Kingdom. In upholding the principle, Lord Jowwit of

the House of Lords said: “No principle of comity demands that a state should

ignore the crime of treason committed against it outside its territory. On the

contrary, a proper regard for its own security requires that all those who commit

that crime, whether they commit it within or without the realm should be amenable

to its laws.”1

The limitations on the protective principle are found in United States v.

Yunis?

[. . . Because this principle gives states wide latitude in defining

the parameters of their jurisdiction, the international community has

strictly construed the reach of this doctrine to those offenses posing a

direct, specific threat to national security. See Blakesley, United States

Jurisdiction over Extraterritorial Crime,

73 J.CrimL. & Criminology at 1136; Bassiouini, II International

Criminal Law ch. 2 at 21. Recently, some academicians have urged a

more liberal interpretation of the protective principle when applied to

terroristic activities. Given “the increase in the number of terroristic

threats against United States nationals abroad, there can be no doubt

that the United States has significant security and protective interests

at stake.” Paust, Federal Jurisdiction over Extraterritorial Acts of

Terrorism, 23 VaJ. oflnt’l Law 191, 210 (1983). In this case, the

hijackers never made any demands upon the United States

government nor directly threatened its security.

'Joyce v. Director of Public

Prosecutions, House of Lords

1946 2681 S 896 (1988)

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157

Indeed, it was almost happenstance that three American nationals

were on board the aircraft. Given the regional focus of the hijacking, a

court would have to adopt an expansive view of the principle to assert

jurisdiction over Yunis. Since jurisdiction is available under the

universality and passive personality principle, there is no reason to

reach out and rely on the protective principle as well.]

The Universality Principle.

The universality principle recognizes that certain activities, universally

dangerous to states and their subjects, require authority in all community members

to punish such acts wherever they may occur, even absent a link between the state

and the parties or the acts in question. This principle started with piracy. Piracy in

international law means any illegal act of violence or depredation committed for

private ends on the high seas or outside the territorial control of any state. Now the

principle covers not just piracy but also genocide, crimes against humanity, war

crimes, aircraft piracy and terrorism. There is also a growing support for universal

jurisdiction over crimes against human rights.

The Statute of the new International Criminal Court defines these crimes,

thus:

Article 6. Genocide

For the purpose of this Statute, “genocide" means any of the

following acts committed with intent to destroy, in whole or in part, a

national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the

group;

calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the

group;

(e) Forcibly transferring children of the group to another

group.

Article 7. Crimes against humanity

1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

a wide-spread or systematic attack directed against any civilian

population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of

physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced

pregnancy, enforced sterilization, or any other form of sexual

violence of comparable gravity;

(h) Persecution against any identifiable group or

collectivity on political, racial, national, ethnic, cultural,

religious, gender as defined in paragraph 3, or other grounds

that are universally recognized as impermissible under

international law, in connection with any act referred to in this

paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character in

tentionally causing great suffering, or serious injury to body or

to mental or physical health.

2. For the purpose of paragraph 1:

(a) “Attack directed against any civilian population"

means a course of conduct involving the multiple commission

of acts referred to in paragraph 1 against any civilian

population, pursuant to or in furtherance of a State or

organizational policy to commit such attack;

(b) “Extermination ” includes the intentional infliction

of conditions of life, inter alia the deprivation of access to food

and medicine, calculated to bring about the destruction of part

of a population;

the powers attaching to the right of ownership over a person

and includes the exercise of such power in the course of

trafficking in persons, in particular women and children;

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(d) “Deportation or forcible transfer of population"

means forced displacement of the persons concerned by

expulsion or other coercive acts from the area in which they are

lawfully present, without grounds permitted under international

law;

(e) “Torture" means the intentional infliction of

severe pain or suffering, whether physical or mental, upon a

person in the custody or under the control of the accused;

except that torture shall not include pain or suffering arising

only from, inherent in or incidental to, lawful sanctions;

(f) “Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of

affecting the ethnic composition of any population or carrying

out other grave violations of international law. This definition

shall not in any way be interpreted as affecting national laws

relating to pregnancy;

(g) “Persecution ” means the intentional and severe

deprivation of fundamental rights contrary to international law

by reason of the identity of the group or collectivity;

(h) “The crime of apartheid" means inhumane acts of

a character similar to those referred to in paragraph 1,

committed in the context of an institutionalized regime of

systematic oppression and domination by one racial group over

any other racial group or groups and committed with the

intention of maintaining that regime;

(i) “Enforced disappearance of persons” means the

arrest, detention or abduction of persons by, or with the

authorization, support or acquiescence of, a State or a political

organization, followed by a refusal to acknowledge that

deprivation of freedom or to give information on the fate or

whereabouts of those persons, with the intention of removing

them from the protection of the law for a prolonged period of

time.

3. For the purpose of this Statute, it is understood that the

term “gender” refers to the two sexes, male and female, within the

context of society. The term “gender” does not indicate any meaning

different from the above.

Article 8. War crimes

1. The Court shall have jurisdiction in respect of war crimes

in particular when committed as part of a plan or policy or as part of a

large-scale commission of such crimes.

160 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

2. For the purpose of this Statute, “war crimes” means:

(a) Grave breaches of the Geneva Conventions of 12

August 1949, namely, any of the following acts against persons

or property protected under the provisions of the relevant

Geneva Convention. ...

Article 8 enumerates in detail the war crimes under the Geneva Convention.

The following are a number of cases illustrative of the universality principle:

F1LARTIGA V. PENA-IRALA 630 FJD 876. (1980)

[This was a wrongful death action which was brought by two

nationals of Paraguay, the father and sister of a 17-year old

Paraguayan, who, it was alleged, was tortured to death in Paraguay by

the defendant Pena-Irala who at the time was Inspector-General of the

police. Jurisdiction was claimed principally on the basis of the Alien

Tort Statute (28 U.S.C. & 1350). The Court held that deliberate

torture under the color of official authority violated the universal rules

of international law regardless of the nationality of the parties. In

reaching the conclusion that the prohibition of torture has become part

of customary international law, the Court referred as evidence to the

Universal Declaration of Human Rights and as particularly relevant,

the 1975 Declaration on the Protection of all Persons from Torture.

[The relevant portions of the Court’s opinion read as follows:]

The Declaration goes on to provide that “[w]here it is proved

that an act of torture or other cruel, inhuman or degrading treatment

or punishment has been committed by or at the instigation of a public

official, the victim shall be afforded redress and compensation, in

accordance with national law.” This Declaration, like the Declaration

of Human Rights before it, was adopted without dissent by the

General Assembly. Nayar, “Human Rights: The United Nations and

United States Foreign Policy,” 19 Harv. Int’l LJ. 813, 816 n. 18

(1978).

These U.N. declarations are significant because they specify with great

precision the obligations of member nations under the Charter.

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161

Since their adoption, “[m]embers can no longer contend that they do not know

what human rights they promised in the Charter to promote.” Sohn, “A Short

History of United Nations Documents on Human Rights," in the The United

Nations and Human Rights, 18th Report of the Commission (Commission to

Study the Organization of Peace [Ed., 1968]).... Accordingly, it has been observed

that the Universal Declaration of Human Rights “no longer fits into the dichotomy

of ‘binding treaty’ against ‘non-binding pronouncement,’ but is rather an authoritative statement of the international community.” E. Schwelb, Human Rights and

the International Community 70 (1964). Thus, a Declaration creates an

expectation of adherence, and “insofar as the expectation is gradually justified by

State practice, a declaration, may by custom become recognized as laying down

rules binding upon the States.” 34 UN. ESCOR, supra. Indeed, several

commentators have concluded that the Universal Declaration has become, in toto,

a part of binding, customary international law. Nayar, supra, at 816-17; Waldock,

“Human Rights in Contemporary International Law and the Significance of the

European Convention, ” I.C.L.Q., Supp.Publ. No. 11 at 15 (1965).

Turning to the act of torture, we have little difficulty discerning its universal

renunciation in the modern usage and practice of nations. Smith, supra, 18 US. (5

Wheat.) at 160-61,5 L.Ed. 57. The international consensus surrounding torture has

found expression in numerous international treaties and accords.... The substance

of these international agreements is reflected in modem municipal — i.e., national

— law as well. Although torture was once a routine concomitant with criminal

interrogations in many nations, during the modem and hopefully more enlightened

era it has been universally renounced. According to one survey, torture is

prohibited, expressly or implicitly, by the constitutions of over fifty-five nations,

including both the United States and Paraguay. Our State Department reports a

general recognition of this principle:

There now exists an international consensus that recognizes basic human

rights and obligations owed by all governments to their citizens. ... There is no

doubt that these rights are often violated; but virtually all governments

acknowledge their validity.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

ATTORNEY GENERAL OF ISRAEL v. EICHMANN Trial Court

Decision

36 Intl. L. Rep. 5 (Israel, Dist. Ct. Jerusalem 1961)

Adolf Eichmann was a high ranking SS officer who played a

central role in the planning and implementation of the persecution of

Jews in Germany, Poland, Hungary and several other countries

before and during World War II. At the end of the war, he escaped to

Argentina where he lived and worked under an alias until May,

1960 when he was kidnapped by Israeli agents. Argentina complained to the Security Council about this clear violation of Argentine

sovereignty. The Security Council, while making it clear that it did

not condone Eichmann’s crimes, declared that, “acts such as that

under consideration [the kidnapping of Eichmann] which affect the

sovereignty of a Member State and therefore cause international

friction, may, if repeated, endanger international peace and security.”

The Security Council requested the Government of Israel “to make

appropriate reparation in accordance with the Charter of the United

Nations and the rules of international law.” Argentina did not demand

the return of Eichmann, and in August,

1960, the Argentine and Israeli governments resolved in a joint

communique “to regard as closed the incident which arose out of the

action taken by citizens of Israel, which infringed the fundamental

rights of the State of Argentina.”

Eichmann was then tried in Israel under Israel’s Nazi Collaborators Law (a law enacted after Israel became a state in 1948).

He was found guilty and the conviction was subsequently upheld by

the Supreme Court of Israel. On May 31,1962, Eichmann went to the

gallows, the only person ever formally executed by the State of

Israel.

Learned defence counsel... submits:

(a) that the Israel Law, by imposing punishment for acts done

outside the boundaries of the State and before its establishment, against

persons who were not Israel citizens, and by a person who acted in the

course of duty on behalf of a foreign country (“Act of State”), conflicts with

international law and exceeds the powers of the Israel Legislature;

(b) that the prosecution of the accused in Israel following his

abduction from a foreign country conflicts with international law and

exceeds the jurisdiction of the Court....

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163

From the point of view of international law, the power of the State of

Israel to enact the Law in question or Israel’s “right to punish” is based,

with respect to the offences in question, on a dual foundation: the universal

character of the crimes in question and their specific character as intended to

exterminate the Jewish people....

12. The abhorrent crimes defined in this Law are not crimes under

Israel law alone. These crimes, which struck at the whole of mankind and

shocked the conscience of nations, are grave offenses against the law of

nations itself (delicta juris gentium). Therefore, so far from international

law negating or limiting the jurisdiction of countries with respect to such

crimes, international law is, in the absence of an International Court, in need

of the judicial and legislative organs of every country to give effect to its

criminal interdictions and to bring the criminals to trial. The jurisdiction to

try crimes under international law is universal....

26. ... It is superfluous to add that the “crime against the Jewish

people,” which constitutes the crime of “genocide”, is nothing but the

gravest type of “crime against humanity” (and all the more so because both

under Israel law and under the Convention a special intention is requisite for

its commission, an intention that is not required for the commission of a

“crime against humanity”). Therefore, all that has been said in the

Nuremberg principles about “crimes against humanity” applies a fortiori to

crime against the Jewish people.” ...

27. ... It is indeed difficult to find a more convincing instance of a

just retroactive law than the legislation providing for the punishment of war

criminals and perpetrators of crimes against humanity and against the

Jewish people, and all the reasons justifying the Nuremberg judgments

justify eo ipse the retroactive legislation of the Israel legislator. ... The

accused in this case is charged with the implementation of the plan for the

“final solution of the problem of the Jews.” Can anyone in his right mind

doubt the absolute criminality of such acts? ...

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

28. ... The contention of learned counsel for the defense

that it is not the accused but the State on whose behalf he had acted, who is

responsible for his criminal acts is only true as to its second part. It is true

that under international law Germany bears not only moral, but also legal,

responsibility for all the crimes that were committed as its own “acts of

State,” including the crimes attributed to the accused. But that responsibility

does not detract one iota from the personal responsibility of the accused for

his acts....

EICHMANN V. ATTORNEY-GENERAL OF ISRAEL Supreme

Court of Israel (1962) 136 IIJl. 277

Judgment Per Curiam:

The crimes created by the Law and of which the appellant was

convicted must be deemed today to have always borne the stamps of

international crimes, banned by international law and entailing

individual criminal liability. It is the particular universal character of

these crimes that vests in each State the power to try and punish any

who assisted in their commission. . . . [Reference the Genocide

Convention and the Nuremberg judgment]..

... As is well known, the rules of the law of nations are not

derived solely from international treaties and crystallized international

usage. In the absence of a supreme legislative authority and

international codes, the process of its evolution resembles that of the

common law;... its rules are established from case to case, by analogy

with the rules embodied in treaties and in intentional custom, on the

basis of the “general” principles of law recognized by civilized

nations,” and in the light of the vital international needs that impel an

immediate solution. A principle which constitutes a common

denominator for the judicial systems of numerous countries must

clearly be regarded as a “general principle of law recognized by

civilized nations.” ... [C]ustomary international law is never stagnant,

but is rather in a process of constant growth....

... [As to] the features which identify crimes that have long

been recognized by customary international law[,] ... they constitute

acts which damage vital international interests ... they impair

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JURISDICTION OF STATES

the foundations and security of the international community; they

violate universal moral values and humanitarian principles which are

at the root of the systems of criminal law adopted by civilized nations.

The underlying principle in intentional law that governs such crimes

is that the individual who has committed any of them and who, at the

time of his act, may be presumed to have had a thorough

understanding of its heinous nature must account in law for his

behavior. It is true that intentional law does not establish explicit and

graduated criminal sanctions; that there is not as yet in existence

either an intentional Criminal Court, or intentional machinery for the

imposition of punishment. But, for the time being, intentional law

surmounts these difficulties ... by authorizing the countries of the

world to mete out punishment for the violation of its provisions. This

they do by enforcing these provisions either directly or by virtue of

the municipal legislation which has adopted and integrated them....

The classic example of a “customary” international crime ... is

that of piracy jure gentium. ... [Another] example ... is that of a “ war

crime “ in the conventional sense. ... the group of acts committed by

members of the armed forces of the enemy which are contrary to the

“’laws and customs of war.” individual criminal responsibility

because they undermine the foundations of intentional society and are

repugnant to the conscience of civilized nations. When the belligerent

State punishes for such acts, it does so not only because persons who

were its nationals ... suffered bodily harm or material damage, but

also, and principally, because they involve the perpetration of an

intentional crime in the avoidance of which all the nations of the

world are interested....

In view of the characteristic traits of international crimes and

the organic development of the law of nations — a development that

advances from case to case under the impact of the humane

sentiments common to civilized nations, and under the pressure of the

needs that are vital for the survival of mankind and for ensuring the

stability of the world order it definitely cannot be said that when the

Charter of the Nuremburg International Military Tribunal was signed

and the categories of “war crimes” and “crimes against humanity”

were defined in it, this merely amounted to an act of legislation by the

victorious countries....

... [The interest in preventing and imposing punishment for acts

comprised in the category in question especially when they are

perpetrated on a very large scale — must necessarily extend beyond

the borders of the State to which the perpetrators belong

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

and which evinced tolerance or encouragement of their outrages; for

such acts can undermine the foundations of the international

community as a whole and impair its very stability....

If we are to regard customary international law as a developing

progressive system, the criticism becomes devoid of value.... [E]ver

since the Nuremberg Tribunal decided this question, that very

decision must be seen as a judicial act which establishes a

“precedent” defining the rule of international law. In any event, it

would be unseemly for any other court to disregard such a rule and

not to follow it. ...

If there was any doubt as to this appraisal of the ‘“Nuremberg

Principles’ as principles that have formed part of customary

international law since time immemorial,” such doubt has been

removed by ... the United Nations Resolution on the Affirmation of

the Principles of International Law Recognized by the Charter and

Judgment of the Nuremberg Tribunal and that affirming that

Genocide is a crime under intentional law ... and as [is seen] in the

advisory opinion of 1951 ... the principles inherent in the [Genocide]

Convention — as distinct from the contractual obligations embodied

therein — had already been part of customary intentional law at the

time of the shocking crimes which led to the Resolution and the

Convention....

... [T]he crimes established in the Law of 1950 ... must be seen

today as acts that have always been forbidden by customary

international law — acts which are of a “universal” criminal character

and entail individual criminal responsibility. ... [T]he enactment of

the Law was not, from the point of view of international law, a

legislative act that conflicted with the principle nulla poena or the

operation of which was retroactive, but rather one by which the

Knesset gave effect to intentional law and its objectives....

... [I]t is the universal character of the crimes in question which

vests in every State the power to try those who participated in the

preparation of such crimes, and to punish them therefor....

One of the principles whereby States assume, in one degree or

another, the power to try and punish a person for an offence he has

committed is the principle of universality. Its meaning is, in essence,

that that power is vested in every State regardless of the fact that the

offence was committed outside its territory by a person who did not

belong to it, provided he is in its custody at the time he is brought to

trial. This principle has wide support and is universally acknowledged

with respect to the offence of piracy jure

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167

gentium.... [One view] holds that it cannot be applied to any other

offence, lest this entail excessive interference with the competence of

the State in which the offence was committed.

The Passive Personality Principle.

The Comment on § 402 of Third Restatement says: “The passive personality

principle asserts that a state may apply law — particularly criminal law — to an

act committed outside its territory by a person not its national where the victim of

the act was its national. The principle has not been ordinarily accepted for ordinary

torts or crimes, but it is increasingly accepted as applied to terrorist and other

organized attacks on a state’s nationals by reason of their nationality, or to

assassination of a state’s diplomatic representatives or other officials.”

UNITED STATES v. FAWAZ YUNIS 681 FJSupp. 8961 (1988)

This criminal proceeding and indictment arise from the

hijacking of a Jordanian civil aircraft, Royal Jordanian Airlines

(“ALIA”) Flight 402, on June 11, and 12, 1985. There is no dispute

that the only nexus to the United States was the presence of several

American nationals on board the flight. The airplane was registered in

Jordan, flew the Jordanian flag and never landed on American soil or

flew over American airspace.

On the morning of June 11, the aircraft was positioned at the

Beirut International Airport, Beirut, Lebanon, for a scheduled

departure to Amman, Jordan. As the 50-60 passengers boarded,

several Arab men, one allegedly the defendant, stormed the plane and

ordered the pilot to fly to Tunis, Tunisia where a meeting of the Arab

League Conference was underway. The airplane departed from Beirut

with all passengers, including the Americans, held hostage. The plane

made a short landing in Lamaco, Cyprus where additional fuel was

obtained. It then proceeded to Tunis where landing privileges were

denied. The airplane flew to Palermo, Sicily, where it was allowed to

replenish its fuel and food supply. Thereafter, it lifted off, destined

once more for Tunis. Again, entry was denied and the pilot returned

to Beirut. On the morning of June 12th, it took off for Damascus,

Syria. However, the Syrian authorities also denied landing privileges.

Thus, after criss-crossing the Mediterranean Sea area for more than

30 hours, the hijackers were forced to return to Beirut, their point of

initial departure.

168 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

After landing, the hostages were directed to exit the aircraft.

The hijackers then called an impromptu press conference and the

defendant Yunis allegedly read a speech, which he originally

intended to give to the delegates of the Arab League Conference then

meeting in Tunis. Following the speech, the hijackers blew up the

Jordanian aircraft, quickly left the scene and vanished into the Beirut

landscape.

Between June 11 and 12, 1985, ALIA Flight 402 never landed

on or flew over American space. Its flightpath was limited to an area

within and around the Mediterranean Sea. Based on the absence of

any nexus to United States territory, Yunis has moved to dismiss the

entire indictment, arguing that no United States federal court has

jurisdiction to prosecute a foreign national for crimes committed in

foreign airspace and on foreign soil. He further claims that the

presence of the American nationals on board the aircraft is an

insufficient basis for exercising jurisdiction under principles of

international law.

Defendant’s motion raises several threshold inquiries: whether

or not there is a basis for jurisdiction under international law, and if

so, whether Congress intended to and had authority to extend

jurisdiction of our federal courts over criminal offenses and events

which were committed and occurred overseas and out of the

territorial jurisdiction of such courts.

II.

ANALYSIS

A. JURISDICTION UNDER INTERNATIONAL LAW

The parties agree that there are five traditional bases of jurisdiction over

extraterritorial crimes under international law: Territorial, wherein jurisdiction is

based on the place where the offense is committed; National, wherein jurisdiction

is based on the nationality of the offender; Protective, wherein jurisdiction is

based on whether the national interest is injured; Universal, wherein jurisdiction is

conferred in any forum that obtains physical custody of the perpetuator of certain

offenses considered particularly heinous and harmful to humanity. Passive

personal, wherein jurisdiction is based on the nationality of the victim.

These general principles were developed in 1935 by a Harvard Research

Project in an effort to codify principles of jurisdiction under

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JURISDICTION OF STATES

international law. See Harvard Research in International Law, Jurisdiction with

Respect to Crime, 29 AmJlnt’l L. 435, 445 (Supp.1935). Most courts, including

our Court of Appeals, have adopted the Harvard Research designations on

jurisdiction. ... Several reputable treatises have also recognized the principles: L.

Henkin, International Law Cases and Materials 447 (1980); A. D’Amato,

International Law and World Order 564 (1980).

The Universal and the Passive Personal principle appear to offer potential

bases for asserting jurisdiction over the hostage-taking and aircraft piracy charges

against Yunis. However, his counsel argues that the Universal principle is not

applicable because neither hostage-taking nor aircraft piracy are heinous crimes

encompassed by the doctrine. He urges further, that the United States does not

recognize Passive Personal as a legitimate source of jurisdiction. The government

flatly disagrees and maintains that jurisdiction is appropriate under both.

1. Universal Principle

[1] The Universal principle recognizes that certain offenses are so heinous

and so widely condemned that “any state if it captures the offender may prosecute

and punish that person on behalf of the world community regardless of the

nationality of the offender or victim or where the crime was committed.” M.

Bassiouini, II International Criminal Law, Ch. 6 at 298 (Ed. 1986). The crucial

question for purposes of defendant’s motion is how crimes are classified as

“heinous” and whether aircraft piracy and hostage taking fit into this category.

Those crimes that are condemned by the world community and subject to

prosecution under the Universal principal are often a matter of international

conventions or treaties. See Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir.

1985). (Treaty against genocide signed by a significant number of states made that

crime heinous; therefore, Israel had proper jurisdiction over nazi war criminal

under the Universal principle.)

Both offenses are the subject of international agreements. A majority of

states ii\ the world community including Lebanon, have signed three treaties

condemning aircraft piracy: The Tokyo Convention, The Hague Convention, and

The Montreal Convention. The Hague and Montreal Conventions explicitly rely

on the princ^le of Universal jurisdiction in mandating that all states “take such

measures as may

170 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

be necessary to establish its jurisdiction over the offences ... where the alleged

offender is present in its territory.” Hague Convention Art. 4 s 2; Montreal

Convention Art. 5 s 2. Further, those treaties direct that all “contracting states ... of

which the alleged offender is found,... shall, be obliged, without exception

whatsoever and whether or not the offense was committed in its territory, to

submit the case to its competent authorities for the purpose of prosecution.”

Hague Convention, Art. 7; Montreal Convention, Art. 7. (emphasis added) These

two provisions together demonstrate the international community’s strong

commitment to punish aircraft hijackers irrespective of where the hijacking

occurred.

The global community has also joined together and adopted the

International Convention for the Taking of Hostages, an agreement which

condemns and criminalizes the offense of hostage taking. Like the conventions

denouncing aircraft piracy, this treaty requires signatory states to prosecute any

alleged offenders “present in its territory.”

In light of the global efforts to punish aircraft piracy and hostage taking,

international legal scholars unanimously agree that these crimes fit within the

category of heinous crimes for purposes of asserting universal jurisdiction. See M.

Bassiouini, II International Criminal Law Ch. 2 at 31-32; McCredie,

Contemporary Uses of Force Against Terrorism, 1986 GaJ. oflnt’l & Comp.L.

435,439 (1986); Bazyler, Capturing the Terrorist in the Wild Blue Yonder, 8

Whittier L.Rev. 685,687 (1986); Blakesley, United States Jurisdiction over

Extraterritorial Crime, 73 J. ofCrim.L. & Criminology 1109,1140 (1982). In The

Restatement (Revised) of Foreign Relations Law of the United States, a source

heavily relied upon by the defendant, aircraft hijacking is specifically identified as

a universal crime over which all states should exercise jurisdiction.

Our Circuit has cited the Restatement with approval and determined that the

Universal principle, standing alone, provides sufficient basis for asserting

jurisdiction over an alleged offender. See Tel-Oren v. Libyan Arab Republic, 726

F.2d at 781, n. 7. (“The premise of universal jurisdiction is that a state ‘may

exercise jurisdiction to define and punish certain offenses recognized by the

community of nations as of universal concern,’... even where no other recognized

basis of jurisdiction is present.”) Therefore, under recognized principles of

international law, and the law of thip Circuit, there is clear authority to assert

jurisdiction over Yunis for the offenses of aircraft piracy and hostage taking.

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JURISDICTION OF STATES

171

2. Passive Personality Principle

This principle authorizes states to assert jurisdiction over offenses

committed against their citizens abroad. It recognizes that each state has a

legitimate interest in protecting the safety of its citizens when they journey outside

national boundaries. Because American nationals were on board the Jordanian

aircraft, the government contends that the Court may exercise jurisdiction over

Yunis under this principle. Defendant argues that this theory of jurisdiction is

neither recognized by the international community nor the United States and is an

insufficient basis for sustaining jurisdiction over Yunis.

Although many international legal scholars agree that the principle is the

most controversial of the five sources of jurisdiction, they also agree that the

international community recognizes its legitimacy. Most accept that “the

extraterritorial reach of a law premised upon the ... principle would not be in doubt

as a matter of international law.” Paust, Jurisdiction and Nonimmunity, 23 Va. J.

oflnt’l Law, 191, 203 (1983). More importantly, the international community

explicitly approved of the principle as a basis for asserting jurisdiction over

hostage takers. As noted above, supra p. 9, the Hostage Taking Convention set

forth certain mandatory sources of jurisdiction. But it also gave each signatory

country discretion to exercise extraterritorial jurisdiction when the offense was

committed “with respect to a hostage who is a national of that state if that state

considers it appropriate.” Art. 5(a)(d). Therefore, even if there are doubts

regarding the international community’s acceptance, there can be no doubt

concerning the application of this principle to the offense of hostage taking, an

offense for which Yunis is charged. See M. Bassiouni, II International Criminal

Law ch. 4 at 120.

Defendant’s counsel correctly notes that the Passive Personal principle

traditionally has been an anathema to United States lawmakers. But his reliance on

the Restatement (Revised) of Foreign Relations Laws for the claim that the United

States can never invoke the principle is misplaced. In the past, the United States

has protested any assertion of such jurisdiction for fear that it could lead to

indefinite criminal liability for its own citizens. This objection was based on the

belief that foreigners visiting the United States should comply with our laws and

should not be permitted to carry their laws with them. Otherwise Americans would

face criminal prosecutions for actions unknown to

172 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

them as illegal. However, in the most recent draft of the Restatement, the authors

noted that the theory “has been increasingly accepted when applied to terrorist and

other organized attacks on a state’s nationals by reason of their nationality, or to

assassinations of a state’s ambassadors, or government officials.” Restatement

(Revised) s 402, comment g (Tent. Draft No. 6). See also McGinley, The Achillo

Lauro Affair-Implications for International Law, 52 TennLRev. 691, 713 (1985).

The authors retreated from their wholesale rejection of the principle, recognizing

that perpetrators of crimes unanimously condemned by members of the

international community, should be aware of the illegality of their actions.]

Therefore, qualified application of the doctrine to serious and universally

condemned crimes will not raise the specter of unlimited and unexpected criminal

liability.

Finally, this case does not present the first time that the United States has

invoked the principle to assert jurisdiction over a hijacker who seized an American

hostage on foreign soil. The government relied on this very principle when it

sought extradition of Muhammed Abbas Zaiden, the leader of the terrorists who

hijacked the Achillo Lauro vessel in Egyptian waters and subsequently killed Leon

Klinghoffer, an American citizen. As here, the only connection to the United

States was Klinghoffer’s American citizenship. Based on that link, an arrest

warrant was issued charging Abbas with hostage taking, conspiracy and piracy. Id.

at 719; See also N.Y. Times, Oct. 16,1985 s 1 at 1 col. 6.

Thus, the Universal and Passive Personality principles, together, provide

ample grounds for this Court to assert jurisdiction over Yunis. In fact, reliance on

both strengthens the basis for asserting jurisdiction. Not only is the United States

acting on behalf of the world community to punish alleged offenders of crimes

that threaten the very foundations of world order, but the United States has its own

interest in protecting its nationals.

Conflicts of jurisdiction.

Since there are various accepted principles for assuming jurisdiction, more

than one state may have a valid claim to jurisdiction. U.S. courts have attempted to

develop more sophisticated modes of resolving conflict of jurisdiction. Three

modes are given below.

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JURISDICTION OF STATES

173

The Balancing Test

In Timberlane Lumber Co. v. Bank of America? the question was whether

to assume jurisdiction in a Sherman Act case involving acts emanating from

Honduras. The court employed a tripartite analysis to determine whether to

assume jurisdiction or not. First, was there an actual or intended effect on

American foreign commerce. Second, is the effect sufficiently large to present a

cognizable injury to the plaintiffs and, therefore, a civil violation of the anti-trust

laws. Third, are the interests of, and link to, the United States . . . including effects

on American foreign commerce sufficiently strong, vis-d-vis those of other

nations, to justify an assertion of extraordinary authority. If the answer is yes to all

these, then the court will assume jurisdiction.

International Comity

Even when a state has basis for exercising jurisdiction, it will refrain from

doing so if its exercise will be unreasonable. This is treated in Hartford Fire

Insurance Co. v. California,

but the principle involved is summed up in Third

Restatement §§ 403. Unreasonableness is determined by evaluating various

factors, such as the link of the activity to the territory of the regulating state, the

connection, such as nationality, residence, or economic activity, between the

regulating state and the person principally responsible for the activity to be

regulated, the character of the activity to be regulated, the existence of justified

expectations that might be protected or hurt by the regulation, the likelihood of

conflict with regulation by another state.

Forum non conveniens

The principle of forum non conveniens is well-stated in the following

excerpt from a Scottish decision:

If in the whole circumstances of the case it be discovered that there is

a real unfairness to one of the suitors in permitting the choice of a forum

which is not the natural or proper forum, either on the ground of

convenience of trial or the residence or domicile of parties or of its being the

locus contractus, or locus solutionis, then the doctrine of forum non

conveniens is properly applied.

549 F2d 597.

509 US

764(1993)

174 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The application is discretionary with the court. Some of the interests which

the court needs to weigh are divided into private interest factors and public interest

factors. The private interest factors are access to sources of proof, availability of

compulsory process for unwilling witnesses and other personal problems which

make trial easy, expeditious and inexpensive. Public interest factors include

congestion, desire to settle local controversies at home, and having the case tried

in a forum at home with the applicable law. Forum non conveniens presumption is

with the plaintiff. Piper Aircraft Co. v. Reyno,

is a leading application of the

principle.

Extradition.

Extradition is the surrender of an individual by the state within whose

territory he is found to the state under whose laws he is alleged to have committed

a crime or to have been convicted of a crime. It is a process that is governed by

treaty. The legal right to demand extradition and the correlative duty to surrender a

fugitive exist only when created by treaty. A treaty may cover specific crimes only

or all offenses considered criminal by both states. Today most treaties exclude

religious and political offenses, although political offenses have never been

precisely defined. But a state may surrender a fugitive if surrendering him is not

contrary to the state’s constitution.

The following principles govern extradition: (1) No state is obliged to

extradite unless there is a treaty; (2) Differences in legal system can be an obstacle

to interpretation of what the crime is; (3) Religious and political offenses are not

extraditable.

The procedure for extradition is normally through diplomatic channels. The

following case of United States v. Alvarez-Chain is an example of how

extradition rules can be bypassed.

UNITED STATES v. ALVAREZ-MACHAIN 504UJS.655 (1992)

CHIEF JUSTICE REHNQUIST delivered the opinion of the

Court.

The issue in this case is whether a criminal defendant, abducted

to the United States from a nation with which it has an

454U.S. 235 (1981).

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JURISDICTION OF STATES

extradition treaty, thereby acquires a defense to the jurisdiction of this

country’s courts. We hold that he does not, and that he may be tried in

federal district court for violations of the criminal law of the United

States.

Accused was indicted for participating in the kidnap and

murder of United States Drug Enforcement Administration (DEA)

special agent Enrique Camarena-Salazar and a Mexican pilot working

with Camarena, Alfredo Zavala-Avelar. The DEA believes that

respondent, a medical doctor, participated in the murder by prolonging agent Camarena’s life so that others could further torture and

interrogate him. On April 2, 1990, respondent was forcibly kidnapped

from his medical office in Guadalajara, Mexico, to be flown by

private plane to El Paso, Texas, where he was arrested by DEA

officials. The District Court concluded that DEA agents were

responsible for respondent’s abduction, although they were not

personally involved in it. United States v. Caro-Quintero, 745 FSupp.

599, 602-604, 609 (CD Cal. 1990).

Respondent moved to dismiss the indictment, claiming that his

abduction constituted outrageous governmental conduct, and that the

District Court lacked jurisdiction to try him because he was abducted

in violation of the extradition treaty between the United States and

Mexico. ... The District Court rejected the outrageous governmental

conduct claim, but held that it lacked jurisdiction to try respondent

because his abduction violated the Extradition Treaty. The District

Court discharged respondent and ordered that he be repatriated to

Mexico. Caro-Quintero, supra, at 614.

The Court of Appeals affirmed the dismissal of the indictment

and the repatriation of respondent...

In Ker v. Illinois, 119 U.S. 436 (1886) ... written by Justice

Miller ... we addressed the issue of a defendant brought before the

court by way of a forcible abduction. Frederick Ker had been tried

and convicted in an Illinois court for larceny; his presence before the

court was procured by means of forcible abduction from Peru. A

messenger was sent to Lima with the proper warrant to demand Ker

by virtue of the extradition treaty between Peru and the United States.

The messenger, however, disdained reliance on the treaty processes,

and instead forcibly kidnapped Ker and brought him to the United

States. We ... rejected Ker’s due process argument more broadly,

holding in line with “the highest authorities,” that such forcible

abduction is no sufficient reason why the party should not

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

answer when brought within the jurisdiction of the court which has

the right to try him for such an offence, and presents no valid

objection to his trial in such court. Ker, supra, at 444.

In Frisbie v. Collins, 342 US. 519, rehearing denied, 343 U.S.

937 (1952), we applied the rule in Ker to a case in which the

defendant had been kidnaped in Chicago by Michigan officers and

brought to trial in Michigan. We upheld the conviction over objections based on the Due Process Clause and the Federal Kidnapping

Act, and stated:

“This Court has never departed from the rule announced

in [Ker] that the power of a court to try a person for crime is

not impaired by the fact that he had been brought within the

court’s jurisdiction by reason of a ‘forcible abduction.’ No

persuasive reasons are now presented to justify overruling this

line of cases. They [504 U.S. 655,662] rest on the sound basis

that due process of law is satisfied when one present in court is

convicted of crime after having been fairly apprized of the

charges against him and after a fair trial in accordance with

constitutional procedural safeguards. There is nothing in the

Constitution that requires a court to permit a guilty person

rightfully convicted to escape justice because he was brought to

trial against his will.” Frisbie, supra, at 522 (citation and

footnote omitted).

In construing a treaty, as in construing a statute, we first look to

its terms to determine its meaning. ... The Treaty says nothing about

the obligations of the United States and Mexico to refrain from

forcible abductions of people from the territory of the other nation, or

the consequences under the Treaty if such an abduction occurs....

More critical to respondent’s argument is Article 9 of the

Treaty, which provides:

“1. Neither Contracting Party shall be bound to deliver

up its own nationals, but the executive authority of the

requested Party shall, if not prevented by the laws of that Party,

have the power to deliver them up if, in its discretion, it be

deemed proper to do so.

“2. If extradition is not granted pursuant to paragraph 1

of this Article, the requested Party shall submit the case to its

competent authorities for the purpose of prosecu-

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JURISDICTION OF STATES

tion, provided that Party has jurisdiction over the offense.”

Id., at 5065. [504 US. 655, 664]

According to respondent, Article 9 embodies the terms of the

bargain which the United States struck: If the United States wishes to

prosecute a Mexican national, it may request that individual’s

extradition. Upon a request from the United States, Mexico may

either extradite the individual or submit the case to the proper

authorities for prosecution in Mexico. In this way, respondent

reasons, each nation preserved its right to choose whether its nationals

would be tried in its own courts or by the courts of the other nation.

This preservation of rights would be frustrated if either nation were

free to abduct nationals of the other nation for the purposes of

prosecution. More broadly, respondent reasons, as did the Court of

Appeals, that all the processes and restrictions on the obligation to

extradite established by the Treaty would make no sense if either

nation were free to resort to forcible kidnapping to gain the presence

of an individual for prosecution in a manner not contemplated by the

Treaty. Verdugo, supra, at 1350.

We do not read the Treaty in such a fashion. Article 9 does not

purport to specify the only way in which one country may gain

custody of a national of the other country for the purposes of

prosecution. In the absence of an extradition treaty, nations are under

no obligation to surrender those in their country to foreign authorities

for prosecution. Rauscher, 119 US., at 411-412; Factor v.

Laubenheimer, 290 US. 276,287(1933); cf. Valentine v. United

States ex rel. Neidecker, supra, at 8-9. (United States may not

extradite a citizen in the absence of a statute or treaty obligation).

Extradition treaties exist so as to impose mutual obligations to

surrender individuals in certain defined sets of circumstances,

following established procedures. See 1 J. Moore, A Treatise on

Extradition and Interstate Rendition 72 (1891). The Treaty thus

provides a mechanism which would not otherwise exist, requiring,

under certain circumstances, the United States and Mexico to

extradite individuals to the [504 U.S. 655, 665] other country and

establishing the procedures to be followed when the Treaty is

invoked.

The history of negotiation and practice under the Treaty also

fails to show that abductions outside of the Treaty constitute a

violation of the Treaty. As the Solicitor General notes, the Mexican

Government was made aware, as early as 1906, of the Ker doctrine,

and the United States’ position that it applied to forcible abductions

made outside of the terms of the United States-Mexico

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Extradition Treaty. Nonetheless, the current version of the Treaty,

signed in 1978, does not attempt to establish a rule that would in any

way curtail the effect of Ker. Moreover, although language which

would grant individuals exactly the right sought by respondent had

been considered and drafted as early as 1935 by a prominent group of

legal scholars sponsored by the faculty of Harvard Law School, no

such clause appears in the current Treaty.

Thus, the language of the Treaty, in the context of its history,

does not support the proposition that the Treaty prohibits abductions

outside of its terms. The remaining question, therefore, is whether the

Treaty should be interpreted so as to include an implied term

prohibiting prosecution where the defendant’s presence is obtained by

means other than those established by the Treaty. See Valentine, 299

US., at 17 (“Strictly, the question is not whether there had been a

uniform practical construction denying the power, but whether the

power had been so clearly recognized that the grant should be

implied.”)

Respondent contends that the Treaty must be interpreted against

the backdrop of customary international law, and that international

abductions are “so clearly prohibited in international law” that there

was no reason to include such a clause in the Treaty itself. Brief for

Respondent 11. The international censure of international abductions

is further evidenced, according to respondent, by the United Nations

Charter and the Charter of the Organization of American States. Id., at

17. Respondent does not argue that these sources of international law

provide an independent basis for the right respondent asserts not to be

tried in the United States, but rather that they should inform the

interpretation of the Treaty terms. [504 US. 655, 667]

The Court of Appeals deemed it essential, in order for the

individual defendant to assert a right under the Treaty, that the affected

foreign government had registered a protest. Verdugo, 939 F.2d, at

1357 (“In the kidnapping case, there must be a formal protest from the

offended government after the kidnapping”). Respondent agrees that

the right exercised by the individual is derivative of the nation’s right

under the Treaty, since nations are authorized, notwithstanding the

terms of an extradition treaty, to voluntarily render an individual to the

other country on terms completely outside of those provided in the

treaty. The formal protest, therefore, ensures that the “offended” nation

actually objects to the abduction, and has not in some way voluntarily

rendered the individual for prosecution. Thus, the Extradition

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JURISDICTION OF STATES

179

Treaty only prohibits gaining the defendant’s presence by means other

than those set forth in the Treaty when the nation from which the

defendant was abducted objects.

This argument seems to us inconsistent with the remainder of

respondent’s argument. The Extradition Treaty has the force of law,

and if, as respondent asserts, it is self-executing, it would appear that a

court must enforce it on behalf of an individual regardless of the

offensiveness of the practice of one nation to the other nation. In

Rauscher, the Court noted that Great Britain had taken the position in

other cases that the Webster-Ashburton Treaty included the doctrine of

specialty, but no importance was attached to whether or not Great

Britain had protested the prosecution of Rauscher for the crime of cruel

and unusual punishment, as opposed to murder.

More fundamentally, the difficulty with the support respondent

gamers from international law is that none of it relates to the practice

of nations in relation to extradition treaties. In Rauscher, we implied a

term in the Webster-Ashburton Treaty because of the practice of

nations with regard to extradition treaties. In the instant case,

respondent [504 U.S. 655, 668] would imply terms in the Extradition

Treaty from the practice of nations with regards to international law

more generally. Respondent would have us find that the Treaty acts as

a prohibition against a violation of the general principle of

international law that one government may not “exercise its police

power in the territory of another state.” Brief for Respondent 16. There

are many actions which could be taken by a nation that would violate

this principle, including waging war, but it cannot seriously be

contended that an invasion of the United States by Mexico would

violate the terms of the Extradition Treaty between the two nations.

In sum, to infer from this Treaty and its terms that it prohibits all

means of gaining the presence of an individual [504 U.S. 655, 669]

outside of its terms goes beyond established precedent and practice. In

Rauscher, the implication of a doctrine of specialty into the terms of

the Webster-Ashburton Treaty which, by its terms, required the

presentation of evidence establishing probable cause of the crime of

extradition before extradition was required, was a small step to take.

By contrast, to imply from the terms of this Treaty that it prohibits

obtaining the presence of an individual by means outside of the

procedures the Treaty establishes requires a much larger inferential

leap, with only the most general of international law principles to

support it. The general principles

180 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

cited by respondent simply fail to persuade us that we should imply in

the United States-Mexico Extradition Treaty a term prohibiting

international abductions.

Respondent and his amici may be correct that respondent’s

abduction was “shocking,” Tr. of Oral Arg. 40, and that it may be in

violation of general international law principles. Mexico has protested

the abduction of respondent through diplomatic notes,

App. 33-38, and the decision of whether respondent should be returned

to Mexico, as a matter outside of the Treaty, is a matter for the

Executive Branch. We conclude, however, that respondent’s abduction

was not in violation of the Extradition Treaty between the United

States and Mexico, and therefore the rule of Ker v. Illinois is fully

applicable to this case. The fact of respondent’s forcible abduction

does not therefore prohibit his trial in a court in the United States for

violations of the criminal laws of the United States.

The judgment of the Court of Appeals is therefore reversed, and

the case is remanded for further proceedings consistent with this

opinion.

So ordered.

The following case illustrates how the due process requirements work in an

extradition case:

SECRETARY OF JUSTICE vs. HON. RALPH C. LANTION G.R. No. 139465.

October 17,2000

EN BANC (footnotes omitted)

The jugular issue is whether or not the private respondent is

entitled to the due process right to notice and hearing during the

evaluation stage of the extradition process.

We now hold that private respondent is bereft of the right to

notice and hearing during the evaluation stage of the extradition

process.

First. RD. No. 1069 which implements the RP-US Extradition

Treaty provides the time when an extraditee shall be furnished a copy

of the petition for extradition as well as its supporting papers,

i. e„ after the filing of the petition for extradition in the extradition

court, viz.:

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“SECTION 6. Issuance of Summons; Temporary Arrest;

Hearing; Service of Notices. — (1) Immediately upon receipt of

the petition, the presiding judge of the court shall, as soon as

practicable, summon the accused to appear and to answer the

petition on the day and hour fixed in the order. ... Upon receipt

of the answer, or should the accused after having received the

summons fail to answer within the time fixed, the presiding

judge shall hear the case or set another date for the hearing

thereof.

(2) The order and notice as well as a copy of the warrant

of arrest, if issued, shall be promptly served each upon the

accused and the attorney having charge of the case.”

It is of judicial notice that the summons includes the petition for

extradition which will be answered by the extraditee.

There is no provision in the RP-US Extradition Treaty and in

P.D. No. 1069 which gives an extraditee the right to demand from the

petitioner Secretary of Justice copies of the extradition request from

the US government and its supporting documents and to comment

thereon while the request is still undergoing evaluation. We cannot

write a provision in the treaty giving private respondent that right

where there is none. It is well-settled that a “court cannot alter, amend,

or add to a treaty by the insertion of any clause, small or great, or

dispense with any of its conditions and requirements or take away any

qualification, or integral part of any stipulation, upon any motion of

equity, or general convenience, or substantial justice.”

Second. All treaties, including the RP-US Extradition Treaty,

should be interpreted in light of their intent. Nothing less than the

Vienna Convention on the Law of Treaties to which the Philippines is

a signatory provides that “a treaty shall be interpreted in good faith in

accordance with the ordinary meaning to be given to the terms of the

treaty in their context and in light of its object and purpose.” (emphasis

supplied) The preambular paragraphs of P.D. No. 1069 define its

intent, viz.:

“WHEREAS, under the Constitution^] the Philippines

adopts the generally accepted principles of international law as

part of the law of the land, and adheres to the policy of peace,

equality, justice, freedom, cooperation and amity with all

nations;

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

WHEREAS, the suppression of crime is the concern not

only of the state where it is committed but also of any other

state to which the criminal may have escaped, because it saps

the foundation of social life and is an outrage upon humanity at

large, and it is in the interest of civilized communities that

crimes should not go unpunished;

WHEREAS, in recognition of this principle the

Philippines recently concluded an extradition treaty with the

Republic of Indonesia, and intends to conclude similar treaties

with other interested countries; ...” (emphasis supplied)

It cannot be gainsaid that today, countries like the Philippines

forge extradition treaties to arrest the dramatic rise of international and

transnational crimes like terrorism and drug trafficking. Extradition

treaties provide the assurance that the punishment of these crimes will

not be frustrated by the frontiers of territorial sovereignty. Implicit in

the treaties should be the unbending commitment that the perpetrators

of these crimes will not be coddled by any signatory state.

It ought to follow that the RP-US Extradition Treaty calls for an

interpretation that will minimize if not prevent the escape of

extraditees from the long arm of the law and expedite their trial. The

submission of the private respondent, that as a probable extraditee

under the RP-US Extradition Treaty he should be furnished a copy of

the US government request for his extradition and its supporting

documents even while they are still under evaluation by petitioner

Secretary of Justice, does not meet this desideratum. The fear of the

petitioner Secretary of Justice that the demanded notice is equivalent

to a notice to flee must be deeply rooted on the experience of the

executive branch of our government. As it comes from the branch of

our government in charge of the faithful execution of our laws, it

deserves the careful consideration of this Court. In addition, it cannot

be gainsaid that private respondent’s demand for advance notice can

delay the summary process of executive evaluation of the extradition

request and its accompanying papers. The foresight of Justice Oliver

Wendell Holmes did not miss this danger. In 1911, he held:

“It is common in extradition cases to attempt to bring to

bear all the factitious niceties of a criminal trial at common law.

But it is a waste of time ... if there is presented, even in

somewhat untechnical form according to our ideas,

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such reasonable ground to suppose him guilty as to make it

proper that he should be tried, good faith to the demanding

government requires his surrender.” (emphasis supplied)

We erode no right of an extraditee when we do not allow time to

stand still on his prosecution. Justice is best served when done without

delay.

Third. An equally compelling factor to consider is the understanding of the parties themselves to the RP-US Extradition Treaty as

well as the general interpretation of the issue in question by other

countries with similar treaties with the Philippines. The rule is

recognized that while courts have the power to interpret treaties, the

meaning given them by the departments of government particularly

charged with their negotiation and enforcement is accorded great

weight. The reason for the rule is laid down in Santos III v. Northwest

Orient Airlines, et al., where we stressed that a treaty is a joint

executive legislative act which enjoys the presumption that “it was first

carefully studied and determined to be constitutional before it was

adopted and given the force of law in the country.”

Our executive department of government, thru the Department

of Foreign Affairs (DFA) and the Department of Justice (DOJ), has

steadfastly maintained that the RP-US Extradition Treaty and P.D. No.

1069 do not grant the private respondent a right to notice and hearing

during the evaluation stage of an extradition process. This

understanding of the treaty is shared by the US government, the other

party to the treaty. This interpretation by the two governments cannot

be given scant significance. It will be presumptuous for the Court to

assume that both governments did not understand the terms of the

treaty they concluded.

Yet, this is not all. Other countries with similar extradition

treaties with the Philippines have expressed the same interpretation

adopted by the Philippine and US governments. Canadian 11 and

Hongkong authorities, thru appropriate note verbales communicated to

our Department of Foreign Affairs, stated in unequivocal language that

it is not an international practice to afford a potential extraditee with a

copy of the extradition papers during the evaluation stage of the

extradition process. We cannot disregard such a convergence of views

unless it is manifestly erroneous.

Fourth. Private respondent, however, peddles the postulate that

he must be afforded the right to notice and hearing as required by our

Constitution. He buttresses his position by likening an

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

extradition proceeding to a criminal proceeding and the evaluation

stage to a preliminary investigation.

We are not persuaded. An extradition proceeding is sui generis.

It is not a criminal proceeding which will call into operation all the

rights of an accused as guaranteed by the Bill of Rights. To begin with,

the process of extradition does not involve the determination of the

guilt or innocence of an accused. His guilt or innocence will be

adjudged in the court of the state where he will be extradited. Hence,

as a rule, constitutional rights that are only relevant to determine the

guilt or innocence of an accused cannot be invoked by an extraditee

especially by one whose extradition papers are still undergoing

evaluation. As held by the US Supreme Court in United States v.

Galanis:

“An extradition proceeding is not a criminal prosecution,

and the constitutional safeguards that accompany a criminal trial

in this country do not shield an accused from extradition

pursuant to a valid treaty.”

There are other differences between an extradition proceeding

and a criminal proceeding. An extradition proceeding is summary in

nature while criminal proceedings involve a full-blown trial. In

contradistinction to a criminal proceeding, the rules of evidence in an

extradition proceeding allow admission of evidence under less

stringent standards. In terms of the quantum of evidence to be

satisfied, a criminal case requires proof beyond reasonable doubt for

conviction while a fugitive may be ordered extradited “upon showing

of the existence of a prima facie case.” Finally, unlike in a criminal

case where judgment becomes executory upon being rendered final, in

an extradition proceeding, our courts may adjudge an individual

extraditable but the President has the final discretion to extradite him.

The United States adheres to a similar practice whereby the Secretary

of State exercises wide discretion in balancing the equities of the case

and the demands of the nation’s foreign relations before making the

ultimate decision to extradite.

As an extradition proceeding is not criminal in character and the

evaluation stage in an extradition proceeding is not akin to a

preliminary investigation, the due process safeguards in the latter do

not necessarily apply to the former. This we hold for the procedural

due process required by a given set of circumstances “must begin with

a determination of the precise nature of the government function

involved as well as the private interest that has been affected by

governmental action.” The concept of due process is

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JURISDICTION OF STATES

flexible for “not all situations calling for procedural safeguards call for

the same kind of procedure.”

Fifth. Private respondent would also impress upon the Court the

urgency of his right to notice and hearing considering the alleged threat

to his liberty “which may be more priceless than life.” The supposed

threat to private respondent’s liberty is perceived to come from several

provisions of the RP-US Extradition Treaty and P.D. No. 1069 which

allow provisional arrest and temporary detention.

We first deal with provisional arrest. The RP-US Extradition

Treaty provides as follows:

“PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request

the provisional arrest of the person sought pending presentation

of the request for extradition. A request for provisional arrest

may be transmitted through the diplomatic channel or directly

between the Philippine Department of Justice and the United

States Department of Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;

c) a brief statement of the facts of the case,

including, if possible, the time and location of the offense;

d) a description of the laws violated;

e) a statement of the existence of a warrant of

arrest or finding of guilt or judgment of conviction against

the person sought; and

f) a statement that a request for extradition for

the person sought will follow.

3. The Requesting State shall be notified without

delay of the disposition of its application and the reasons for any

denial.

4. A person who is provisionally arrested may be

discharged from custody upon the expiration of sixty (60)

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

days from the date of arrest pursuant to this Treaty if the

executive authority of the Requested State has not received the

formal request for extradition and the supporting documents

required in Article 7.” (emphasis supplied)

In relation to the above, Section 20 of RD. No. 1069 provides:

“SECTION 20. Provisional Arrest. — (a) In case of

urgency, the requesting state may, pursuant to the relevant treaty

or convention and while the same remains in force, request for

the provisional arrest of the accused, pending receipt of the

request for extradition made in accordance with Section 4 of this

Decree.

(b) A request for provisional arrest shall be sent to the

Director of the National Bureau of Investigation, Manila, either

through the diplomatic channels or direct by post or telegraph.

the request immediately secure a warrant for the provisional

arrest of the accused from the presiding judge of the Court of

First Instance of the province or city having jurisdiction of the

place, who shall issue the warrant for the provisional arrest of

the accused. The Director of the National Bureau of

Investigation through the Secretary of Foreign Affairs shall

inform the requesting state of the result of its request.

(d) If within a period of 20 days after the provisional

arrest the Secretary of Foreign Affairs has not received the

request for extradition and the documents mentioned in Section

4 of this Decree, the accused shall be released from custody.”

(emphasis supplied)

Both the RP-US Extradition Treaty and P.D. No. 1069 clearly

provide that private respondent may be provisionally arrested only

pending receipt of the request for extradition. Our DFA has long

received the extradition request from the United States and has turned

it over to the DOJ. It is undisputed that until today, the United States

has not requested for private respondent’s provisional arrest.

Therefore, the threat to private respondent’s liberty has passed. It is

more imagined than real.

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Nor can the threat to private respondent’s liberty come from

Section 6 of P.D. No. 1069, which provides:

“SECTION 6. Issuance of Summons; Temporary Arrest;

Hearing, Service of Notices. — (1) Immediately upon receipt of

the petition, the presiding judge of the court shall, as soon as

practicable, summon the accused to appear and to answer the

petition on the day and hour fixed in the order. [H]e may issue a

warrant for the immediate arrest of the accused which may be

served anywhere within the Philippines if it appears to the

presiding judge that the immediate arrest and temporary

detention of the accused will best serve the ends of justice.

(2) The order and notice as well as a copy of the warrant

of arrest, if issued, shall be promptly served each upon the

accused and the attorney having charge of the case.” (emphasis

supplied)

It is evident from the above provision that a warrant of arrest for

the temporary detention of the accused pending the extradition hearing

may only be issued by the presiding judge of the extradition court

upon filing of the petition for extradition. As the extradition process is

still in the evaluation stage of pertinent documents and there is no

certainty that a petition for extradition will be filed in the appropriate

extradition court, the threat to private respondent’s liberty is merely

hypothetical.

Sixth. To be sure, private respondent’s plea for due process

deserves serious consideration involving as it does his primordial right

to liberty. His plea to due process, however, collides with important

state interests which cannot also be ignored for they serve the interest

of the greater majority. The clash of rights demands a delicate

balancing of interests approach which is a “fundamental postulate of

constitutional law.” The approach requires that we “take conscious and

detailed consideration of the interplay of interests observable in a

given situation or type of situation.” These interests usually consist in

the exercise by an individual of his basic freedoms on the one hand,

and the government’s promotion of fundamental public interest or

policy objectives on the other.

In the case at bar, on one end of the balancing pole is the private

respondent’s claim to due process predicated on Section

1, Article III of the Constitution, which provides that “No person shall

be deprived of life, liberty, or property without due process of law ...”

Without a bubble of doubt, procedural due process of law

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

lies at the foundation of a civilized society which accords paramount

importance to justice and fairness. It has to be accorded the weight it

deserves.

This brings us to the other end of the balancing pole. Petitioner

avers that the Court should give more weight to our national

commitment under the RP-US Extradition Treaty to expedite the

extradition to the United States of persons charged with violation of

some of its laws. Petitioner also emphasizes the need to defer to the

judgment of the Executive on matters relating to foreign affairs in

order not to weaken if not violate the principle of separation of powers.

Considering that in the case at bar, the extradition proceeding is

only at its evaluation stage, the nature of the right being claimed by the

private respondent is nebulous and the degree of prejudice he will

allegedly suffer is weak, we accord greater weight to the interests

espoused by the government thru the petitioner Secretary of Justice. In

Angara v. Electoral Commission, we held that the “Constitution has

blocked out with deft strokes and in bold lines, allotment of power to

the executive, the legislative and the judicial departments of the

government.” Under our constitutional scheme, executive power is

vested in the President of the Philippines. Executive power includes,

among others, the power to contract or guarantee foreign loans and the

power to enter into treaties or international agreements. The task of

safeguarding that these treaties are duly honored devolves upon the

executive department which has the competence and authority to so act

in the international arena. It is traditionally held that the President has

power and even supremacy over the country’s foreign relations. The

executive department is aptly accorded deference on matters of foreign

relations considering the President’s most comprehensive and most

confidential information about the international scene of which he is

regularly briefed by our diplomatic and consular officials. His access

to ultra-sensitive military intelligence data is also unlimited. The

deference we give to the executive department is dictated by the

principle of separation of powers. This principle is one of the

cornerstones of our democratic government. It cannot be eroded

without endangering our government.

The Philippines also has a national interest to help in

suppressing crimes and one way to do it is to facilitate the extradition

of persons covered by treaties duly entered by our government. More

and more, crimes are becoming the concern of one world. Laws

involving crimes and crime prevention are

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JURISDICTION OF STATES

undergoing universalization. One manifest purpose of this trend

towards globalization is to deny easy refuge to a criminal whose

activities threaten the peace and progress of civilized countries. It is to

the great interest of the Philippines to be part of this irreversible

movement in light of its vulnerability to crimes, especially

transnational crimes.

In tilting the balance in favor of the interests of the State, the

Court stresses that it is not ruling that the private respondent has no

right to due process at all throughout the length and breadth of the

extrajudicial proceedings. Procedural due process requires a

determination of what process is due, when it is due, and the degree of

what is due. Stated otherwise, a prior determination should be made as

to whether procedural protections are at all due and when they are due,

which in turn depends on the extent to which an individual will be

“condemned to suffer grievous loss.” We have explained why an

extraditee has no right to notice and hearing during the evaluation

stage of the extradition process. As aforesaid, P.D. No. 1069 which

implements the RP-US Extradition Treaty affords an extraditee

sufficient opportunity to meet the evidence against him once the

petition is filed in court. The time for the extraditee to know the basis

of the request for his extradition is merely moved to the filing in court

of the formal petition for extradition. The extraditee’s right to know is

momentarily withheld during the evaluation stage of the extradition

process to accommodate the more compelling interest of the State to

prevent escape of potential extraditees which can be precipitated by

premature information of the basis of the request for his extradition.

No less compelling at that stage of the extradition proceedings is the

need to be more deferential to the judgment of a co-equal branch of the

government, the Executive, which has been endowed by our

Constitution with greater power over matters involving our foreign

relations. Needless to state, this balance of interests is not a static but a

moving balance which can be adjusted as the extradition process

moves from the administrative stage to the judicial stage and to the

execution stage depending on factors that will come into play. In sum,

we rule that the temporary hold on private respondent’s privilege of

notice and hearing is a soft restraint on his right to due process which

will not deprive him of fundamental fairness should he decide to resist

the request for his extradition to the United States. There is no denial

of due process as long as fundamental fairness is assured a party.

We end where we began. A myopic interpretation of the due

process clause would not suffice to resolve the conflicting rights in

190 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

the case at bar. With the global village shrinking at a rapid pace,

propelled as it is by technological leaps in transportation and communication, we need to push further back our horizons and work with

the rest of the civilized nations and move closer to the universal goals

of “peace, equality, justice, freedom, cooperation and amity with all

nations.” In the end, it is the individual who will reap the harvest of

peace and prosperity from these efforts.

WHEREFORE, the Urgent Motion for Reconsideration is

GRANTED. The Decision in the case at bar promulgated on January

18, 2000 is REVERSED. The assailed Order issued by the public

respondent judge on August 9, 1999 is SET ASIDE.

The temporary restraining order issued by this Court on August 17,

1999 is made PERMANENT. The Regional Trial Court of Manila,

Branch 25 is enjoined from conducting further proceedings in Civil

Case No. 99-94684.

Bail in extradition cases

If after his arrest and if the trial court finds that an extraditee is not a flight

risk, the court may grant him bail. (In this case the grant of bail presupposed that a

co-petitioner, the wife, had already presented evidence to prove her right to be on

bail, that she was no flight risk, and the trial court had already exercised its sound

discretion and had already determined that under the Constitution and laws in force,

co- petitioner was entitled to provisional release.) The Court emphasized that bail

may be granted to a possible extraditee only upon a clear and convincing showing

(1) that he will not be a flight risk or a danger to the community, and (2) that there

exist special, humanitarian and compelling circumstances.6

In a later case, the Court said that it could not ignore the following trends in

international law: (1) the growing importance of the individual person in public

international law who, in the 20th century, has gradually attained global

recognition; (2) the higher value now being given to human rights in the

international sphere; (3) the corresponding duty of countries to observe these

universal human rights in fulfilling their treaty obligations; and (4) the duty of the

Court to balance the rights of the individual under our fundamental law, on one

hand, and the law on extradition, on the other. It added, “If bail can be granted in

deportation

6Rodriguez v. Judge, G.R. No. 157977, February 27,2006.

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191

cases, we see no justification why it should not also be allowed in extradition cases.

After all, both are administrative proceedings where the innocence or guilt of the

person detained is not in issue.”7

The decision departs from the earlier case of Mark Jimenez (US v. Judge

Puruganan, September 24, 2002) which said that bail is not available in extradition

cases.

’Gov’t of Hongkong v. Olalia, GR 153675, April 19,2007.

Chapter 10 IMMUNITY FROM JURISDICTION

Immunity from jurisdiction.

The general rule is that the jurisdiction of a state within its territory is

complete and absolute. However, there are two categories of exceptions to this rule.

The first is sovereign immunity and the second is the immunity of the

representative of states or diplomatic and consular immunities. Sovereign immunity

covers both a head of state and the state itself.

Immunity of head of state.

Immunity from jurisdiction is enjoyed by both the head of state and by the

state itself. The example many authors give of the immunity of a head of state is the

case of Mighell v. Sultan ofJohore.' The Sultan of Johore was sued for breach of

promise to marry in a British court. The subject of the suit therefore was a private

matter, not a state matter. Upon verification of his being a sitting foreign sovereign,

the case was dismissed. The immunity that is recognized here is absolute for a

sitting head of state.

More recent is the Pinochet Case which involved one who no longer was a

head of state but whose immunity for official or governmental acts was recognized.

The Pinochet Case: Background

General Augusto Pinochet led a 1973 military coup that overthrew

democratically-elected Chilean President Salvador Allende. According to a national

truth and reconciliation commission, at least 3,196 people

'1 QB 148(1894).

192

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193

were killed or forcibly disappeared during Pinochet’s subsequent 17- year

dictatorship. Thousands more were tortured or exiled.

On October 16, 1998, while seeking medical help in London, British

authorities detained Augusto Pinochet on an arrest warrant issued by Spanish

Magistrate Baltasar Garzon. Garzon who had charged Pinochet with genocide,

terrorism, and torture committed during the Chilean dictatorship and was seeking

his extradition.

In November 1998, a panel of British law lords ruled that Pinochet did not

enjoy immunity from prosecution as a former head of state and could be extradited

to Spain. This decision, based largely on customary international law, was set aside,

however, when one of the judges who heard the appeal was found to have ties to

Amnesty International. A larger panel of law lords heard the appeal again in March

1999, and in a 6-1 decision, reaffirmed that Pinochet could be extradited.

REGINA v. BARTLE AND THE COMMISSIONER OF POLICE

ON 24 March 1999 House of Lords

LORD BROWNE-WILKINSON

. . . [i]n my judgment, Senator Pinochet as former head of state

enjoys immunity ratione materiae in relation to acts done by him as

head of state as part of his official functions as head of state.

The question then which has to be answered is whether the

alleged organisation of state torture by Senator Pinochet (if proved)

would constitute an act committed by Senator Pinochet as part of his

official functions as head of state....

Can it be said that the commission of a crime which is an

international crime against humanity and jus cogens is an act done in

an official capacity on behalf of the state? I believe there to be strong

ground for saying that the implementation of torture as defined by the

Torture Convention cannot be a state function. This is the view taken

by Sir Arthur Watts (supra) who said (at p. 82):

“The idea that individuals who commit international

crimes are internationally accountable for them has now become

an accepted part of international law. Problems in this area —

such as the non-existence of any standing

194 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

international tribunal to have jurisdiction over such crimes, and

the lack of agreement as to what acts are internationally criminal

for this purpose— have not affected the general acceptance of

the principle of individual responsibility for international

criminal conduct.”

Later, at p. 84, he said:

“It can no longer be doubted that as a matter of general

customary international law a head of state will personally be

liable to be called to account if there is sufficient evidence that

he authorized or perpetrated such serious international crimes.”

Finally, and to my mind decisively, if the implementation of a torture regime

is a public function giving rise to immunity ratione materiae, this produces bizarre

results. Immunity ratione materiae applies not only to ex-heads of state and exambassadors but to all state officials who have been involved in carrying out the

functions of the state. Such immunity is necessary in order to prevent state

immunity being circumvented by prosecuting or suing the official who, for

example, actually carried out the torture when a claim against the head of state

would be precluded by the doctrine of immunity. If that applied to the present case,

and if the implementation of the torture regime is to be treated as official business

sufficient to found an immunity for the former head of state, it must also be official

business sufficient to justify immunity for his inferiors who actually did the

torturing. Under the [Torture] Convention the international crime of torture can

only be committed by an official or someone in an official capacity. They would all

be entitled to immunity.... Therefore, the whole elaborate structure of universal

jurisdiction over torture committed by officials is rendered abortive and one of the

main objectives of the Torture Convention — to provide a system under which

there is no safe haven for torturers — will have been frustrated. In my judgment, all

these factors together demonstrate that the notion of continued immunity for exheads of state is inconsistent with the provisions of the Torture Convention.

For these reasons in my judgment if, as alleged, Senator Pinochet organized

and authorized torture after 8 December 1988, he was not acting in any capacity

which gives rise to immunity ratione materiae because such actions were contrary

to international law ...

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195

[The Chilean government and other extradition opponents then

urged the British government to send the former dictator back to Chile

on medical grounds. Despite the protests of legal and medical experts

from several countries, British Home Secretary Jack Straw released

Pinochet on March 2,2000, ostensibly on health grounds.]

State immunity.

The principle that the state may not be sued without its consent found in the

Philippine Constitution is both municipal law and also international law applicable

to foreign states. This is based on the principle of equality of states: par in parent

non habet imperium.

An early case, The Schooner Exchange v. MacFaddon1

is usually cited as

authority for saying that states enjoy absolute immunity. Chief Justice Marshall

noted that “the nation within its own territory is necessarily exclusive and absolute.

It is susceptible of no limitation not imposed by itself.” However, he immediately

added that absolute territorial jurisdiction “would not seem to contemplate foreign

sovereigns nor their sovereign rights as its objects. One sovereign being in no

respect amenable to another; and being bound by obligations of the highest

character not to degrade the dignity of his nation, by placing himself or its

sovereign rights within the jurisdiction of another, can be supposed to enter a

foreign territory ... in the confidence that the immunities belonging to his

independent sovereign station, though not expressly stipulated, are reserved by

implication, and will be extended to him.”

The immunity of the sovereign head is seen as also communicated to the

sovereign state: “This perfect equality and absolute independence of sovereigns,

and this common interest impelling them to mutual intercourse, and an interchange

of good offices with each other, have given rise to a class of cases in which every

sovereign is understood to waive the exercise of a part of that complete exclusive

territorial jurisdiction, which has been stated to be the attribute of every nation.”

With the gradual expansion of state involvement in commerce, the principle

evolved over the years. Immunity came to be reserved only for acts jure imperii

(governmental acts) but not for acts jure gestionis

11 U.S. 116 [Cranch],

196 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

(trading and commercial acts). Dralle v. Republic of Czechoslovakia,3

after a

survey of various jurisdictions concluded:

The Supreme Court therefore reaches the conclusion that it can

no longer be said that by international law so-called acta gestionis are

exempt from municipal jurisdiction. This subjection of the acta

gestionis to the jurisdiction of States has its basis in the development of

the commercial activity of States.

The classic doctrine of immunity arose at a time when all their political

activities, either by the purchase of commodities for their diplomatic

representatives abroad, or by the purchase of war material for war

purposes, etc. Therefore, there was no justification for any distinction

between private transactions and acts of sovereignty. Today the

position is entirely different;

States engage in commercial activities and, as the present case shows,

enter into competition with their own nationals and with foreigners.

Accordingly, the classic doctrine of immunity has lost its meaning and,

ratione cessante, can no longer be recognized as a rule of international

law.

This rule is also followed in Philippine jurisdiction as shown especially by

the numerous cases involving U.S. military bases authorities. United States of

America v. Hon. V.M. Ruiz* categorically said:

The traditional rule of State immunity exempts a State from

being sued in the courts of another State without its consent or waiver.

This rule is a necessary consequence of the principles of independence

and equality of States. However, the rules of International Law are not

petrified; they are constantly developing and evolving. And because

the activities of states have multiplied, it has been necessary to

distinguish them — between sovereign and governmental acts (jure

imperii) and private, commercial and proprietary acts (jure gestionis).

The result is that State immunity now extends only to acts jure imperii.

The restrictive application of State immunity is now the rule in the

United States, the United Kingdom and other states in western Europe.

The restrictive application of State immunity is proper only

when the proceedings arise out of commercial transactions of the

foreign sovereign, its commercial activities or economic affairs. Stated

differently, a State may be said to have descended to the level of an

individual and can thus be deemed to have tacitly given

’

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197

its consent to be sued only when it enters into business contracts.

It does not apply where the contract relates to the exercise of its

sovereign functions. In this case, the projects [repairs of base facilities]

are an integral part of the naval base which is devoted to the defense of

both the United States and the Philippines, indisputably a function of

the government of the highest order; they are not utilized for nor

dedicated to commercial or business purposes.

In United States v. Hon. Luis Reyes,5

the claim of immunity was rejected

when it was shown that the acts of the American official were committed not only

outside the scope of her authority but also contrary to law:

It is a different matter where the public official is made to

account in his capacity as such for acts contrary to law and injurious to

the rights of plaintiff. ... ‘Inasmuch as the State authorizes only legal

acts by its officers, unauthorized acts of government officials or

officers are not acts of the State, and an action against the officials or

officers by one whose rights have been invaded or violated by such

acts, for the protection of his rights, is not a suit against the State

within the rule of immunity of the State from suit.

In the same tenor, it has been said that an action at law or suit in equity

against a State officer or the director of a State department on the

ground that, while claiming to act for the State, he violates or invades

the personal and property rights or the plaintiff, under an

unconstitutional act or under an assumption of authority which he does

not have, is not a suit against the State within the constitutional

provision that the State may not be sued without its consent.’

The rationale for this ruling is that the doctrine of state immunity

cannot be used as an instrument for perpetrating an injustice.

In the Holy See v. Eriberto Rosario, Jr.,6 where it was claimed that the Holy

See had waived its sovereign immunity by entering into a contract for the sale of a

piece of land, the Court said:

In the absence of legislation defining what activities and

transactions shall be considered “commercial” and as constituting acts

jure gestionis, we have to come out with our own guidelines, tentative

they may be.

Certainly, the mere entering into a contract by a foreign state

with a private party cannot be the ultimate test. Such an act can

5G.R. No. 79253, March 1,1993.

6G.R. No. 101949, December

198 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

only be the start of the inquiry. The logical question is whether the

foreign state is engaged in the activity in the regular course of

business. If the foreign state is not engaged regularly in a business or

trade, the particular act or transaction must then be tested by its nature.

If the act is in pursuit of a sovereign activity, or an incident thereof,

then it is an act jure imperii, especially when it is not undertaken for

gain or profit.

In the case at bench, if petitioner has bought and sold lands in

the ordinary course of a real estate business, surely the said transaction

can be categorized as an act jure gestionis. However, petitioner has

denied that the acquisition and subsequent disposal of Lot 5-A were

made for profit but claimed that it acquired said property for the site of

its mission or the Apostolic Nunciature in the Philippines. Private

respondent failed to dispute said claim.

The Court also indicated how a state claiming sovereign immunity should

proceed:

In Public International Law, when a state or international

agency wishes to plead sovereign or diplomatic immunity in a foreign

court, it requests the Foreign Office of the state where it is sued to

convey to the court that said defendant is entitled to immunity.

In the Philippines, the practice is for the foreign government or

the international organization to first secure an executive endorsement

of its claim of sovereign or diplomatic immunity. But how the

Philippine Foreign Office conveys its endorsement to the courts varies.

By way of consolation, however, the Court added: “Private respondent is not

left without any legal remedy for the redress of its grievances. Under both Public

International Law and Transnational Law, a person who feels aggrieved by the acts

of a foreign sovereign can ask his own government to espouse his cause through

diplomatic channels.”

REPUBLIC OF INDONESIA V. VINZON G S.. No. 154705, June 26,2003

AZCUNA, J.:

Petitioner, Republic of Indonesia, represented by its Counsellor,

Siti Partinah, entered into a Maintenance Agreement in August 1995

with respondent James Vinzon, sole proprietor of

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Vinzon Trade and Services. The Maintenance Agreement stated that

respondent shall, for a consideration, maintain specified equipment at

the Embassy Main Building, Embassy Annex Building and the Wisma

Duta, the official residence of petitioner Ambassador Soeratmin. The

equipment covered by the Maintenance Agreement are air

conditioning units, generator sets, electrical facilities, water heaters,

and water motor pumps. It is likewise stated therein that the agreement

shall be effective for a period of four years and will renew itself

automatically unless cancelled by either party by giving thirty days

prior written notice from the date of expiry.

Petitioners claim that sometime prior to the date of expiration of

the said agreement, or before August 1999, they informed respondent

that the renewal of the agreement shall be at the discretion of the

incoming Chief of Administration, Minister Counsellor Azhari Kasim,

who was expected to arrive in February 2000. When Minister

Counsellor Kasim assumed the position of Chief of Administration in

March 2000, he allegedly found respondent’s work and services

unsatisfactory and not in compliance with the standards set in the

Maintenance Agreement. Hence, the Indonesian Embassy terminated

the agreement in a letter dated August 31, 2000. Petitioners claim,

moreover, that they had earlier verbally informed respondent of their

decision to terminate the agreement.

On the other hand, respondent claims that the aforesaid

termination was arbitrary and unlawful. Respondent cites various

circumstances which purportedly negated petitioners’ alleged

dissatisfaction over respondent’s services: (a) in July 2000, Minister

Counsellor Kasim still requested respondent to assign to the embassy

an additional full-time worker to assist one of his other workers; (b) in

August 2000, Minister Counsellor Kasim asked respondent to donate a

prize, which the latter did, on the occasion of the Indonesian

Independence Day golf tournament; and (c) in a letter dated August 22,

2000, petitioner Ambassador Soeratmin thanked respondent for

sponsoring a prize and expressed his hope that the cordial relations

happily existing between them will continue to prosper and be

strengthened in the coming years.

Hence, on December 15,2000, respondent filed a complaint

against petitioners docketed as Civil Case No. 18203 in the Regional

Trial Court (RTC) of Makati, Branch 145. On February 20, 2001,

petitioners filed a Motion to Dismiss, alleging that the Republic of

Indonesia, as a foreign sovereign State, has sovereign immunity from

suit and cannot be sued as a party-defendant in the Philippines. The

said motion further alleged that Ambassador

200 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Soeratmin and Minister Counsellor Kasim are diplomatic agents as

defined under the Vienna Convention on Diplomatic Relations and

therefore enjoy diplomatic immunity. In turn, respondent filed on

March 20, 2001, an Opposition to the said motion alleging that the

Republic of Indonesia has expressly waived its immunity from suit.

He based this claim upon the following provision in the Maintenance

Agreement:

“Any legal action arising out of this Maintenance

Agreement shall be settled according to the laws of the Philippines and by the proper court of Makati City, Philippines.”

Respondent’s Opposition likewise alleged that Ambassador

Soeratmin and Minister Counsellor Kasim can be sued and held liable

in their private capacities for tortious acts done with malice and bad

faith.

On May 17, 2001, the trial court denied herein petitioners’

Motion to Dismiss. It likewise denied the Motion for Reconsideration

subsequently filed.

The trial court’s denial of the Motion to Dismiss was brought up

to the Court of Appeals by herein petitioners in a petition for

certiorari and prohibition. Said petition, docketed as CA-G.R. SP No.

66894, alleged that the trial court gravely abused its discretion in

ruling that the Republic of Indonesia gave its consent to be sued and

voluntarily submitted itself to the laws and jurisdiction of Philippine

courts and that petitioners Ambassador Soeratmin and Minister

Counsellor Kasim waived their immunity from suit.

On May 30,2002, the Court of Appeals rendered its assailed

decision denying the petition for lack of merit. On August 16, 2002, it

denied herein petitioners’ motion for reconsideration.

Hence, this petition.

In the case at bar, petitioners raise the sole issue of whether or

not the Court of Appeals erred in sustaining the trial court’s decision

that petitioners have waived their immunity from suit by using as its

basis the above-mentioned provision in the Maintenance Agreement.

The petition is impressed with merit.

International law is founded largely upon the principles of

reciprocity, comity, independence, and equality of States which were

adopted as part of the law of our land under Article II, Section 2 of the

1987 Constitution. The rule that a State may not be sued

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without its consent is a necessary consequence of the principles of

independence and equality of States. [United States of America, et al. v.

Ruiz, 136 SCRA 487 (1987).] As enunciated in Sanders v. Veridiano

II, 162 SCRA 88, 96 (1988), the practical justification for the doctrine

of sovereign immunity is that there can be no legal right against the

authority that makes the law on which the right depends. In the case of

foreign States, the rule is derived from the principle of the sovereign

equality of States, as expressed in the maxim par in parem non habet

imperium. All states are sovereign equals and cannot assert jurisdiction

over one another. A contrary attitude would “unduly vex the peace of

nations.”

The rules of International Law, however, are neither unyielding

nor impervious to change. The increasing need of sovereign States to

enter into purely commercial activities remotely connected with the

discharge of their governmental functions brought about a new

concept of sovereign immunity. This concept, the restrictive theory,

holds that the immunity of the sovereign is recognized only with

regard to public acts or acts jure imperii, but not with regard to private

acts or acts jure gestionis. [The Holy See v. Rosario, et al., 238 SCRA

524 (1994)].

In United States v. Ruiz, for instance, we held that the conduct of

public bidding for the repair of a wharf at a United States Naval

Station is an act jure imperii. On the other hand, we considered as an

act jure gestionis the hiring of a cook in the recreation center catering

to American servicemen and the general public at the John Hay Air

Station in Baguio City, United States v. Rodrigo, 182 SCRA 644

(1990), as well as the bidding for the operation of barber shops in

Clark Air Base in Angeles City.

Apropos the present case, the mere entering into a contract by a

foreign State with a private party cannot be construed as the ultimate

test of whether or not it is an act jure imperii or jure gestionis. Such act

is only the start of the inquiry. Is the foreign State engaged in the

regular conduct of a business? If the foreign State is not engaged

regularly in a business or commercial activity, and in this case it has

not been shown to be so engaged, the particular act or transaction must

then be tested by its nature. If the act is in pursuit of a sovereign

activity, or an incident thereof, then it is an act jure imperii.

Hence, the existence alone, of a paragraph in a contract stating

that any legal action arising out of the agreement shall be settled

according to the laws of the Philippines and by a specified court of

202 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

the Philippines is not necessarily a waiver of sovereign immunity from

suit. The aforesaid provision contains language not necessarily

inconsistent with sovereign immunity. On the other hand, such

provision may also be meant to apply where the sovereign party elects

to sue in the local courts, or otherwise waives its immunity by any

subsequent act. The applicability of Philippine laws must be deemed to

include Philippine laws in its totality, including the principle

recognizing sovereign immunity. Hence, the proper court may have no

proper action, by way of settling the case, except to dismiss it.

Submission by a foreign state to local jurisdiction must be clear

and unequivocal. It must be given explicitly or by necessary

implication. We find no such waiver in this case.

Respondent concedes that the establishment of a diplomatic

mission is a sovereign function. On the other hand, he argues that the

actual physical maintenance of the premises of the diplomatic mission,

such as the upkeep of its furnishings and equipment, is no longer a

sovereign function of the State.

We disagree. There is no dispute that the establishment of a

diplomatic mission is an act jure imperii. A sovereign State does not

merely establish a diplomatic mission and leave it at that; the

establishment of a diplomatic mission encompasses its maintenance

and upkeep. Hence, the State may enter into contracts with private

entities to maintain the premises, furnishings and equipment of the

embassy and the living quarters of its agents and officials. It is

therefore clear that petitioner Republic of Indonesia was acting in

pursuit of a sovereign activity when it entered into a contract with

respondent for the upkeep or maintenance of the air conditioning units,

generator sets, electrical facilities, water heaters, and water motor

pumps of the Indonesian Embassy and the official residence of the

Indonesian ambassador.

The Solicitor General, in his Comment, submits the view that,

“the Maintenance Agreement was entered into by the Republic of

Indonesia in the discharge of its governmental functions. In such a

case, it cannot be deemed to have waived its immunity from suit.” As

to the paragraph in the agreement relied upon by respondent, the

Solicitor General states that it “was not a waiver of their immunity

from suit but a mere stipulation that in the event they do waive their

immunity, Philippine laws shall govern the resolution of any legal

action arising out of the agreement and the proper court in Makati City

shall be the agreed venue thereof.

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203

On the matter of whether or not petitioners Ambassador

Soeratmin and Minister Counsellor Kasim may be sued herein in their

private capacities, Article 31 of the Vienna Convention on Diplomatic

Relations provides:

xxx xxx xxx

1. A diplomatic agent shall enjoy immunity from the

criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case

of:

(a) a real action relating to private immovable property

situated in the territory of the receiving State, unless he holds it

on behalf of the sending State for the purposes of the mission;

(b) an action relating to succession in which the

diplomatic agent is involved as executor, administrator, heir or

legatee as a private person and not on behalf of the sending

State;

commercial activity exercised by the diplomatic agent in the

receiving State outside his official functions.

xxx xxx xxx

The act of petitioners Ambassador Soeratmin and Minister

Counsellor Kasim in terminating the Maintenance Agreement is not

covered by the exceptions provided in the abovementioned provision.

The Solicitor General believes that said act may fall under

subparagraph (c) thereof, but said provision clearly applies only to a

situation where the diplomatic agent engages in any professional or

commercial activity outside official functions, which is not the case

herein.

WHEREFORE, the petition is hereby GRANTED.

Diplomatic and consular immunities.

The law governing diplomatic relations dates back to earliest intercourse

between nations. Much of it is customary law. Official representatives of a state are

given immunities and privileges when they are within the territory of another state.

The immunities and privileges they enjoy are personal in the sense that they benefit

the person. But the purpose of the immunities given them is functional, that is, to

enable

204 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

them to perform their functions properly. On the part of the receiving state there lie

certain obligations to protect the representative and his property and office. The law

on this subject is very important because of the reliance states place on their

representatives in dealing with other states.

Diplomatic immunities.

Diplomats are concerned with the political relations of states. The

codification of the law on the subject may be found in the Vienna Convention on

Diplomatic Relations (1961). The diplomatic representatives who can enjoy

immunities in varying degrees are enumerated in Article I;

Article I

For the purpose of the present Convention, the following

expressions shall have the meanings hereunder assigned to them:

(a) the "head of the mission ” is the person charged by the

sending State with the duty of acting in that capacity;

(b) the “members of the mission” are the head of the mission

and the members of the staff of the mission;

(c) the “members of the staff of the mission ” are the members of the diplomatic staff, of the administrative and technical staff

and of the service staff of the mission;

(d) the “members of the diplomatic staff" are the members of

the staff of the mission having diplomatic rank;

(e) a “diplomatic agent" is the head of the mission or a

member of the diplomatic staff of the mission;

(f) the “members of the administrative and technical staff"

are the members of the staff of the mission employed in the

administrative and technical service of the mission;

(g) the “members of the service staff" are the members of the

staff of the mission in the domestic service of the mission;

(h) a “private servant” is a person who is in the domestic

service of a member of the mission and who is not an employee of the

sending State;

(i) the “premises of the mission" are the buildings or parts of

buildings and the land ancillary thereto, irrespective of ownership,

used for the purposes of the mission including the residence of the

head of the mission.

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The functions of the diplomatic mission are enumerated in Article 3:

(a) representing the sending State in the receiving State;

(b) protecting in the receiving State the interests of the sending State

and of its nationals, within the limits permitted by international law; (c)

negotiating with the Government of the receiving State;

(d) ascertaining by all lawful means conditions and developments in

the receiving State, and reporting thereon to the Government of the

sending State; (e) promoting friendly relations between the sending

State and the receiving State, and developing their economic, cultural

and scientific relations.

Diplomatic relations between states are purely by mutual consent. Before the

head of mission is sent to the receiving state, an agreement must first be obtained.

The receiving state is under no obligation to give reasons for refusing an agreement.

(Art. 4) Moreover, the “receiving State may at any time, and without having to

explain its decision, notify the sending State that the head of the mission or any

member of the diplomatic staff of the mission is persona non grata or that any

other member of the staff of the mission is not acceptable. In any such case, the

sending State shall, as appropriate, either recall the person concerned or terminate

his functions with the mission. A person may be declared non grata or not

acceptable before arriving in the territory of the receiving State.” (Art. 9).

The following are some of the rights and privileges of the diplomatic

mission:

Article 22

1. The premises of the mission shall be inviolable. The

agents of the receiving State may not enter them, except with the

consent of the head of the mission.

2. The receiving State is under a special duty to take all

appropriate steps to protect the premises of the mission against any

intrusion or damage and to prevent any disturbance of the peace of the

mission or impairment of its dignity.

3. The premises of the mission, their furnishings and other

property thereon and the means of transport of the mission shall be

immune from search, requisition, attachment or execution.

206 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Article 23

1. The sending State and the head of the mission shall be

exempt from all national, regional or municipal dues and taxes in

respect of the premises of the mission, whether owned or leased, other

than such as represent payment for specific services rendered.

2. The exemption from taxation referred to in this Article

shall not apply to such dues and taxes payable under the law of the

receiving State by persons contracting with the sending State or the

head of the mission.

Article 24

The archives and documents of the mission shall be inviolable

at any time and wherever they may be.

Article 27

1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In

communicating with the Government and the other missions and

consulates of the sending State, wherever situated, the mission may

employ all appropriate means, including diplomatic couriers and

messages in code or cipher. However, the mission may install and use

a wireless transmitter only with the consent of the receiving State.

2. The official correspondence of the mission shall be

inviolable. Official correspondence means all correspondence relating

to the mission and its functions.

3. The diplomatic bag shall not be opened or detained.

4. The packages constituting the diplomatic bag must bear

visible external marks of their character and may contain only diplomatic documents or articles intended for official use.

5. The diplomatic courier, who shall be provided with an

official document indicating his status and the number of packages

constituting the diplomatic bag, shall be protected by the receiving

State in the performance of his functions. He shall enjoy personal

inviolability and shall not be liable to any form of arrest or detention.

6. The sending State or the mission may designate diplomatic

couriers ad hoc. In such cases the provisions of paragraph 5 of this

Article shall also apply, except that the immunities therein

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207

mentioned shall cease to apply when such a courier has delivered to

the consignee the diplomatic bag in his charge.

7. A diplomatic bag may be entrusted to the captain of a

commercial aircraft scheduled to land at an authorized port of entry.

He shall be provided with an official document indicating the number

of packages constituting the bag but he shall not be considered to be a

diplomatic courier. The mission may send one of its members to take

possession of the diplomatic bag directly and freely from the captain of

the aircraft.

Article 29

The person of a diplomatic agent shall be inviolable. He shall

not be liable to any form of arrest or detention. The receiving State

shall treat him with due respect and shall take all appropriate steps to

prevent any attack on his person, freedom or dignity.

Article 30

1. The private residence of a diplomatic agent shall enjoy the

same inviolability and protection as the premises of the mission.

2. His papers, correspondence and, except as provided in

paragraph 3 of Article 31, his property, shall likewise enjoy inviolability.

Article 31

1. A diplomatic agent shall enjoy immunity from the criminal

jurisdiction of the receiving State. He shall also enjoy immunity from

its civil and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property

situated in the territory of the receiving State, unless he holds it

on behalf of the sending State for the purposes of the mission;

(b) an action relating to succession in which the diplomatic

agent is involved as executor, administrator, heir or legatee as a

private person and not on behalf of the sending State; (c) an

action relating to any professional or commercial activity

exercised by the diplomatic agent in the receiving State outside

his official functions.

2. A diplomatic agent is not obliged to give evidence as a

witness.

3. No measures of execution may be taken in respect of a

diplomatic agent except in the cases coming under sub-paragraphs

208 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

(a), (b) and (c) of paragraph 1 of this Article, and provided that the

measures concerned can be taken without infringing the inviolability

of his person or of his residence.

4. The immunity of a diplomatic agent from the jurisdiction

of the receiving State does not exempt him from the jurisdiction of the

sending State.

Article 32

1. The immunity from jurisdiction of diplomatic agents and

of persons enjoying immunity under Article 37 may be waived by the

sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent or by

a person enjoying immunity from jurisdiction under Article 37 shall

preclude him from invoking immunity from jurisdiction in respect of

any counter-claim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil

or administrative proceedings shall not be held to imply waiver of

immunity in respect of the execution of the judgment, for which a

separate waiver shall be necessary.

Article 33

1. Subject to the provisions of paragraph 3 of this Article, a

diplomatic agent shall with respect to services rendered for the sending

State be exempt from social security provisions which may be in force

in the receiving State.

2. The exemption provided for in paragraph 1 of this Article

shall also apply to private servants who are in the sole employ of a

diplomatic agent, on condition:

(a) that they are not nationals of or permanently

resident in the receiving State; and (b) that they are covered

by the social security provisions which may be in force in

the sending State or a third State.

3. A diplomatic agent who employs persons to whom the

exemption provided for in paragraph 2 of this Article does not apply

shall observe the obligations which the social security provisions of

the receiving State impose upon employers.

4. The exemption provided for in paragraphs 1 and 2 of this

Article shall not preclude voluntary participation in the social

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209

security system of the receiving State provided that such participation

is permitted by that State.

5. The provisions of this Article shall not affect bilateral or

multilateral agreements concerning social security concluded

previously and shall not prevent the conclusion of such agreements in

the future.

Article 34

A diplomatic agent shall be exempt from all dues and taxes,

personal or real, national, regional or municipal, except:

(a) indirect taxes of a kind which are normally

incorporated in the price of goods or services; (b) dues and taxes

on private immovable property situated in the territory of the

receiving State, unless he holds it on behalf of the sending State

for the purposes of the mission; (c) estate, succession or

inheritance duties levied by the receiving State, subject to the

provisions of paragraph 4 of Article 39;

(d) dues and taxes on private income having its source in the

receiving State and capital taxes on investments made in

commercial undertakings in the receiving State; (e) charges

levied for specific services rendered; (f) registration, court or

record fees, mortgage dues and stamp duty, with respect to

immovable property, subject to the provisions of Article 23.

Article 36

1. The receiving State shall, in accordance with such laws

and regulations as it may adopt, permit entry of and grant exemption

from all customs duties, taxes, and related charges other than charges

for storage, cartage and similar services, on:

(a) articles for the official use of the mission; (b) articles

for the personal use of a diplomatic agent or members of his

family forming part of his household, including articles intended

for his establishment.

2. The personal baggage of a diplomatic agent shall be

exempt from inspection, unless there are serious grounds for

presuming that it contains articles not covered by the exemptions

mentioned in paragraph 1 of this Article, or articles the import or

export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be

conducted only in the presence of the diplomatic agent or of his

authorized representative.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Article 37

1. The members of the family of a diplomatic agent forming

part of his household shall, if they are not nationals of the receiving

State, enjoy the privileges and immunities specified in Articles 29 to

36.

2. Members of the administrative and technical staff of the

mission, together with members of their families forming part of their

respective households, shall, if they are not nationals of or

permanently resident in the receiving State, enjoy the privileges and

immunities specified in Articles 29 to 35, except that the immunity

from civil and administrative jurisdiction of the receiving State

specified in paragraph 1 of Article 31 shall not extend to acts

performed outside the course of their duties. They shall also enjoy the

privileges specified in Article 36, paragraph 1, in respect of articles

imported at the time of first installation.

3. Members of the service staff of the mission who are not

nationals of or permanently resident in the receiving State shall enjoy

immunity in respect of acts performed in the course of their duties,

exemption from dues and taxes on the emoluments they receive by

reason of their employment and the exemption contained in Article 33.

4. Private servants of members of the mission shall, if they

are not nationals of or permanently resident in the receiving State, be

exempt from dues and taxes on the emoluments they receive by reason

of their employment. In other respects, they may enjoy privileges and

immunities only to the extent admitted by the receiving State.

However, the receiving State must exercise its jurisdiction over those

persons in such a manner as not to interfere unduly with the

performance of the functions of the mission.

Article 38

1. Except insofar as additional privileges and immunities

may be granted by the receiving State, a diplomatic agent who is a

national of or permanently resident in that State shall enjoy only

immunity from jurisdiction, and inviolability, in respect of official acts

performed in the exercise of his functions.

2. Other members of the staff of the mission and private

servants who are nationals of or permanently resident in the receiving

State shall enjoy privileges and immunities only to the extent admitted

by the receiving State. However, the receiving

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211

State must exercise its jurisdiction over those persons in such a manner

as not to interfere unduly with the performance of the functions of the

mission.

Article 39

1. Every person entitled to privileges and immunities shall

enjoy them from the moment he enters the territory of the receiving

State on proceeding to take up his post or, if already in its territory,

from the moment when his appointment is notified to the Ministry for

Foreign Affairs or such other ministry as may be agreed.

2. When the functions of a person enjoying privileges and

immunities have come to an end, such privileges and immunities shall

normally cease at the moment when he leaves the country, or on expiry

of a reasonable period in which to do so, but shall subsist until that

time, even in case of armed conflict. However, with respect to acts

performed by such a person in the exercise of his functions as a

member of the mission, immunity shall continue to subsist.

Finally, “it is the duty of all persons enjoying such privileges and immunities

to respect the laws and regulations of the receiving state.” (Art. 41) Nor may they

“practice for personal profit any professional or commercial activity” in the

receiving state. (Art. 42)

Consuls and consular immunities.

Consuls are not concerned with political matters. They attend rather to

administrative and economic issues such as the issuance of visas.

The codification of the law on consular relations may be found in the Vienna

Convention on Consular Relations which entered into force in 1967. Some of the

more important provisions are the following:

Article 5. CONSULAR FUNCTIONS

Consular functions consist in:

(a) protecting in the receiving State the interests of the

sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

(b) furthering the development of commercial, economic,

cultural and scientific relations between the sending State and the

receiving State and otherwise promoting friendly relations between

them in accordance with the provisions of the present Convention;

(c) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of

the receiving State, reporting thereon to the Government of the

sending State and giving information to persons interested;

(d) issuing passports and travel documents to nationals of the

sending State, and visas or appropriate documents to persons wishing

to travel to the sending State;

(e) helping and assisting nationals, both individuals and

bodies corporate, of the sending State;

(0 acting as notary and civil registrar and in capacities of a

similar kind, and performing certain functions of an administrative

nature, provided that there is nothing contrary thereto in the laws and

regulations of the receiving State;

(g) safeguarding the interests of nationals, both individuals

and bodies corporate, of the sending State in cases of succession

mortis causa in the territory of the receiving State, in accordance with

the laws and regulations of the receiving State;

(h) safeguarding, within the limits imposed by the laws and

regulations of the receiving State, the interests of minors and other

persons lacking full capacity who are nationals of the sending State,

particularly where any guardianship or trusteeship is required with

respect to such persons;

(i) subject to the practices and procedures obtaining in the

receiving State, representing or arranging appropriate representation

for nationals of the sending State before the tribunals and other

authorities of the receiving State, for the purpose of obtaining, in

accordance with the laws and regulations of the receiving State,

provisional measures for the preservation of the rights and interests of

these nationals, where, because of absence or any other reason, such

nationals are unable at the proper time to assume the defence of their

rights and interests;

(j) transmitting judicial and extrajudicial documents or

executing letters rogatory or commissions to take evidence for the

courts of the sending State in accordance with international agree-

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213

ments in force or, in the absence of such international agreements, in

any other manner compatible with the laws and regulations of the

receiving State;

(k) exercising rights of supervision and inspection provided for

in the laws and regulations of the sending State in respect of vessels

having the nationality of the sending State, and of aircraft registered in

that State, and in respect of their crews;

(1) extending assistance to vessels and aircraft mentioned in

sub-paragraph (k) of this Article and to their crews, taking statements

regarding the voyage of a vessel, examining and stamping the ship’s

papers, and, without prejudice to the powers of the authorities of the

receiving State, conducting investigations into any incidents which

occurred during the voyage, and settling disputes of any kind between

the master, the officers and the seamen in so far as this may be

authorized by the laws and regulations of the sending State;

(m) performing any other functions entrusted to a consular post

by the sending State which are not prohibited by the laws and

regulations of the receiving State or to which no objection is taken by

the receiving State or which are referred to in the international

agreements in force between the sending State and the receiving State.

The head of a consular post is admitted to the exercise of his functions by an

authorization from the receiving State termed an exequatur. There is no prescribed

form, but without it, he may not enter upon his duties. The receiving State may at

any time notify the sending State that a consular officer is persona non grata or that

any other member of the consular staff is not acceptable. In that event, the sending

State shall, as the case may be, either recall the person concerned or terminate his

functions with the consular post.

The receiving state has the duty to protect the consular premises, archives and

interests of the sending state. (Arts. 27, 31, 32, 33) The receiving state must insure

the unimpeded functioning of the consular offices.

Article 34. FREEDOM OF MOVEMENT

Subject to its laws and regulations concerning zones entry into

which is prohibited or regulated for reasons of national

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

security, the receiving State shall ensure freedom of movement and

travel in its territory to all members of the consular post.

Article 35. FREEDOM OF COMMUNICATION

1. The receiving State shall permit and protect freedom of

communication on the part of the consular post for all official

purposes. In communicating with the Government, the diplomatic

missions and other consular posts, wherever situated, of the sending

State, the consular post may employ all appropriate means, including

diplomatic or consular couriers, diplomatic or consular bags and

messages in code or cipher. However, the consular post may install

and use a wireless transmitter only with the consent of the receiving

State.

2. The official correspondence of the consular post shall be

inviolable.

Official correspondence means all correspondence relating to

the consular post and its functions.

3. The consular bag shall be neither opened nor detained.

Nevertheless, if the competent authorities of the receiving State have

serious reason to believe that the bag contains something other than

the correspondence, documents or articles referred to in paragraph 4 of

this Article, they may request that the bag be opened in their presence

by an authorized representative of the sending State. If this request is

refused by the authorities of the sending State, the bag shall be

returned to its place of origin.

4. The packages constituting the consular bag shall bear

visible external marks of their character and may contain only official

correspondence and documents or articles intended exclusively for

official use.

Article 36. COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with

nationals of the sending State and to have access to them.

Nationals of the sending State shall have the same freedom with

respect to communication with and access to consular officers

of the sending State; (b) if he so requests,

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the competent authorities of the receiving State shall, without

delay, inform the consular post of the sending State if, within its

consular district, a national of that State is arrested or committed

to prison or to custody pending trial or is detained in any other

manner. Any communication addressed to the consular post by

the person arrested, in prison, custody or detention shall also be

forwarded by the said authorities without delay. The said

authorities shall inform the person concerned without delay of

his rights under this sub-paragraph; (c) consular officers shall

have the right to visit a national of the sending State who is in

prison, custody or detention, to converse and correspond with

him and to arrange for his legal representation. They shall also

have the right to visit any national of the sending State who is in

prison, custody or detention in their district in pursuance of a

judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or

detention if he expressly opposes such action.

Article 41. PERSONAL INVIOLABILITY OF CONSULAR

OFFICERS

1. Consular officers shall not be liable to arrest or deten

tion pending trial, except in the case of a grave crime and pursuant to a

decision by the competent judicial authority.

Article 42. NOTIFICATION OF ARREST, DETENTION OR

PROSECUTION

In the event of the arrest or detention, pending trial, of a member

of the consular staff, or of criminal proceedings being instituted against

him, the receiving State shall promptly notify the head of the consular

post.

Article 43. IMMUNITY FROM JURISDICTION

1. Consular officers and consular employees shall not be

amenable to the jurisdiction of the judicial or administrative authorities

of the receiving State in respect of acts performed in the exercise of

consular functions.

2. The provisions of paragraph 1 of this Article shall not,

however, apply in respect of a civil action either:

216 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

(a) arising out of a contract concluded by a consular

officer or a consular employee in which he did not contract

expressly or impliedly as an agent of the sending State; or

(b) by a third party for damage arising from an accident in the

receiving State caused by a vehicle, vessel or aircraft.

Article 44. LIABILITY TO GIVE EVIDENCE

1. Members of a consular post may be called upon to attend as

witnesses in the course of judicial or administrative proceedings. A

consular employee or a member of the service staff shall not, except in

the cases mentioned in paragraph 3 of this Article, decline to give

evidence. If a consular officer should decline to do so, no coercive

measure or penalty may be applied to him.

Article 45. WAIVER OF PRIVILEGES AND IMMUNITIES

1. The sending State may waive, with regard to a member of

the consular post, any of the privileges and immunities provided for in

Articles 41,43 and 44.

Diplomatic and consular immunities were the subject in the case of United

States v. Tehran:

US DIPLOMATIC AND CONSULAR STAFF IN IRAN CASE

United States v. Tehran ICJ Rep 1980 3

On 4 November 1979, Iranian students seized the US

Embassy in Tehran and a number of consulates in outlying

cities. The Iranian authorities failed to protect the Embassy and

later appeared to adopt the students’ actions. Over 50 US

nationals (mostly diplomatic and consular staff) were held for

444 days. The ICJ had indicated provisional measures against

Iran (ICJ Rep 1979 7), and in this case the US sought a

declaration, inter alia, that Iran had violated the two Vienna

Conventions, and calling for the release of the hostages and the

vacation of the Embassy and consulates. The Court considered

whether the initial attack by the students could be attributed to

the Iranian Government and whether Iran was therefore in

violation of its international obligations.

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68. The Court is therefore led inevitably to conclude, in

regard to the first phase of the events which has so far been considered,

that on 4 November 1979, the Iranian authorities:

(a) were fully aware of their obligations under the

conventions in force to take appropriate steps to protect the

premises of the United States Embassy and its diplomatic and

consular staff from any attack and from any infringement of

their inviolability, and to ensure the security of such other

persons as might be present on the said premises;

(b) were fully aware, as a result of the appeals for help

made by the United States Embassy, of the urgent need for

action on their part;

obligations;

(d) completely failed to comply with these obligations.

Similarly, the Court is led to conclude that the Iranian

authorities were equally aware of their obligations to protect the

United States Consulates at Tabriz and Shiraz, and of the need for

action on their part, and similarly failed to use the means which were

at their disposal to comply with their obligations.

69. The second phase of the events which are the subject of

the United States’ claims comprises the whole series of facts which

occurred following the completion of the occupation of the United

States Embassy by the militants, and the seizure of the Consulates at

Tabriz and Shiraz. The occupation having taken place and the

diplomatic and consular personnel of the United States’ mission

having been taken hostages, the action required of the Iranian

Government by the Vienna Conventions and by general international

law manifest. Its plain duty was at once to make every effort, and to

take every appropriate step, to bring these flagrant infringements of the

inviolability of the premises, archives and diplomatic and consular

staff of the United States Embassy to a speedy end, to restore the

Consulates at Tabriz and Shiraz to United States control, and in

general to re-establish the status quo and to offer reparation for the

damage.

76. The Iranian authorities’ decision to continue the subjection

of the premises of the United States Embassy to occupation by

militants and of the Embassy staff to detention as hostages, clearly

gave rise to repeated and multiple breaches of the applica

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

ble provisions of the Vienna Conventions even more serious than

those which arose from their failure to take any steps to prevent the

attacks on the inviolability of these premises and staff.

87. In the present case, the Iranian Government did not break

off diplomatic relations with the United States; and in response to a

question put to him by a Member of the Court, the United States

Agent informed the Court that at no time before the events of 4

November 1979 had the Iranian Government declared, or indicated

any intention to declare, any member of the United States diplomatic

or consular staff in Tehran persona non grata. The Iranian

Government did not, therefore, employ the remedies placed at its

disposal by diplomatic law specifically for dealing with activities of

the kind of which it now complains. Instead, it allowed a group of

militants to attack and occupy the United States Embassy by force,

and to seize the diplomatic and consular staff as hostages; instead, it

has endorsed that action of those militants and has deliberately

maintained their occupation of the Embassy and detention of its staff

as a means of coercing the sending State. It has, at the same time,

refused altogether to discuss this situation with representatives of the

United States. The Court, therefore, can only conclude that Iran did

not have recourse to the normal and efficacious means at its disposal,

but resorted to coeicive action against the United States Embassy and

its staff.

92. It is a matter of deep regret that the situation which

occasioned those observations has not been rectified since they were

made. Having regard to their importance the Court considers it

essential to reiterate them in the present Judgment. The frequency with

which at the present time the principles of international law governing

diplomatic and consular relations are set at naught by individuals or

groups of individuals is already deplorable. But this case is unique and

of very particular gravity because here it is not only private individuals

or groups of individuals that have disregarded and set at naught the

inviolability of a foreign embassy, but the government of the receiving

State itself. Therefore, in recalling yet again the extreme importance of

the principles of law which it is called upon to apply in the present

case, the Court considers it to be its duty to draw the attention of the

entire international community, of which Iran itself has been a

member since time immemorial, to the irreparable harm that may be

caused

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219

by events of the kind now before the Court. Such events cannot fail to

undermine the edifice of law carefully constructed by mankind over a

period of centuries, the maintenance of which is vital for the security

and well-being of the complex international community of the present

day, to which it is more essential than ever that the rules developed to

ensure the ordered progress of relations between its members should

be constantly and scrupulously respected.

Immunity of International Organizations.

The immunities of international organizations treated in Chapter 6.

The Act of State Doctrine.

The act of state doctrine arose from a series of cases in the United States

where the issue was whether United States courts could consider the validity of acts

of a foreign state alleged to be in violation of international law. The doctrine was

first stated in Underhill v. Hernandez.1

The background of the case was a 1892 revolution in Venezuela against the

legitimate government. General Hernandez commanded the anti-administration

party and, after defeating the army of the administration, he entered Bolivar to

assume leadership of the government. George F. Underhill was a citizen of the

United States who had constructed a waterworks system for the city of Bolivar,

under a contract with the government, and was engaged in supplying the place with

water. He also carried on a machinery repair business. Some time after the entry of

Gen. Hernandez, Underhill applied to him for a passport to leave the city.

Hernandez refused this request as well as requests made by others in Underhill’s

behalf. The purpose of Hernandez’s refusal was to coerce Underhill to operate his

waterworks and his repair works for the benefit of the community and the

revolutionary forces. After Underhill was finally allowed to leave, he filed suit in

the United States to recover damages for the detention caused by reason of the

denial of his permit to leave, for his alleged confinement to his own house, and for

certain alleged assaults and affronts by the soldiers of Hernandez’s army. In

denying the plea of Underhill, the U.S. court ruled with what is now known as the

“act of state doctrine”:

168 U.S. 250 (1897), November 29,1897.

220 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Every sovereign state is bound to respect the independence of

every other sovereign state, and the courts of one country will not sit in

judgment on the acts of the government of another, done within its

own territory. Redress of grievances by reason of such acts must be

obtained through the means open to be availed of by sovereign powers

as between themselves.

The doctrine is similar to but different from the doctrine of sovereign

immunity. What underlies it was explained later in Banco National de Cuba v.

Sabbatinos which characterized it as a rule not of international law but of judicial

restraint in domestic law whereby courts refrain from making decisions in

deference to the executive who is the principal architect of foreign relations. The

Court said:

The act of state doctrine does, however, have “constitutional”

underpinnings. It arises out of the basic relationships between branches

of government in a system of separation of powers. It concerns the

competency of dissimilar institutions to make and implement

particular kinds of decisions in the area of international relations. The

doctrine as formulated in past decisions expresses the strong sense of

the Judicial Branch that its engagement in the task of passing on the

validity of foreign acts of state may hinder rather than further this

country’s pursuit of goals both for itself and for the community of

nations as a whole in the international sphere....

The act of state doctrine was again taken up in Alfred Dunhill of London,

Inc. v. Cuba.9

The issue in the case was whether the failure of Cuba to return to

Dunhill funds mistakenly paid by Dunhill for cigars that had been sold to Dunhill

by certain expropriated Cuban cigar businesses was an “act of state” by Cuba

precluding an affirmative judgment against respondents. The decision of the Court

limited the scope of the act of state doctrine:

If we assume with the Court of Appeals that the Cuban

Government itself had purported to exercise sovereign power to

confiscate the mistaken payments belonging to three foreign creditors

and to repudiate interventors’ adjudicated obligation to return those

funds, we are nevertheless persuaded by the arguments of petitioner

and by those of the United States that the concept of

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221

an act of state should not be extended to include the repudiation of a

purely commercial obligation owed by a foreign sovereign or by one

of its commercial instrumentalities. Our cases have not yet gone so far,

and we decline to expand their reach to the extent necessary to affirm

the Court of Appeals.

sjc $ $ $ *

Of course, sovereign immunity has not been pleaded in this

case; but it is beyond cavil that part of the foreign relations law

recognized by the United States is that the commercial obligations of a

foreign government may be adjudicated in those courts otherwise

having jurisdiction to enter such judgments. Nothing in our national

policy calls on us to recognize as an act of state a repudiation by Cuba

of an obligation adjudicated in our courts and arising out of the

operation of a commercial business by one of its instrumentalities. ...

Further refinement was made in Kirkpatrick Co. v. Environmental Tectonics

Corp.'0

The case had for background a contract entered into between the Nigerian

government with Kirkpatrick for the construction and equipment of an aeromedical

center at Kaduna Air Force Base in Nigeria. Environmental Tectonics Corporation,

an unsuccessful bidder for the Kaduna contract, learned that Kirkpatrick had bribed

Nigerian officals in winning the contract. Environmental Tectonics brought the

matter to the attention of the Nigerian Air Force and to the United States Embassy

in Lagos. Following an investigation by the Federal Bureau of Investigation, the

United States Attorney for the District of New Jersey brought charges against

Kirkpatrick for violations of the Foreign Corrupt Practices Act of 1977. Kirkpatrick

pleaded guilty. Whereupon, Environmental Tectonics brought a civil action against

Kirkpatrick and other private parties involved in the bribery to seek damages under

the Racketeer Influenced and Corrupt Organizations Act and other statutes. The

defendants moved to dismiss the complaint on the ground that the action was

barred by the act of state doctrine.

When the case reached the Supreme Court, the Court ruled that the act of

state doctrine is not applicable where the validity of a foreign government act is not

in issue:

l0493 U.S. 400,410 (1990).

222 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The short of the matter is this: Courts in the United States have

the power, and ordinarily the obligation, to decide cases and

controversies properly presented to them. The act of state doctrine

does not establish an exception for cases and controversies that may

embarrass foreign governments, but merely requires that, in the

process of deciding, the acts of foreign sovereigns taken within their

own jurisdictions shall be deemed valid. That doctrine has no

application to the present case because the validity of a foreign

sovereign act is not at issue.

Chapter 11 STATE RESPONSIBILITY

In traditional international law, individuals are generally considered “objects”

and not “subjects” of international law. They possess neither international legal

rights which they could assert on their own. Whatever wrongs may be committed

against them can be redressed only by states or organizations with international

personality. Individuals, therefore, can be objects of state vs. state litigation. Out of

this situation there have arisen doctrines regarding the protection of individuals and

the responsibility of states for injuries inflicted on individuals. State responsibility

for the ill-treatment of aliens is a common form of responsibility that arises in

international law. This chapter will deal with the doctrine on the protection of aliens

and on the still evolving subject of state responsibility.

Protection of Aliens.

No state is obliged to admit aliens into its territory unless there is a treaty

requiring it. This principle is an aspect of sovereignty. Realistically, however, it is

difficult to deny admission to all. Thus, what states generally do is to impose legal

standards for admission. Once admitted, at least under democratic regimes, aliens

may not be expelled without due process.

From the perspective of the state of their nationality, aliens are “nationals

abroad.” They, therefore remain important for the state of their nationality. Hence,

states do have a common interest in the protection of aliens. The practice of the

proper treatment of aliens is based on this commonality of interest. States protect

aliens within their jurisdiction in the expectation that their own nationals will be

properly treated when residing or sojourning abroad. In fact, mistreatment of aliens

is a common cause of international responsibility.

223

224 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Ill-treatment of foreign nationals can come in various forms, e.g.,

mistreatment by judicial or police authorities, unlawful expropriation of property,

failure to prosecute those who attack foreign nationals, or what is called “denial of

justice” or denial of due process of law.

There is a well-developed customary law for the protection of aliens. The

instrument used for the protection of aliens is “diplomatic protection.” This is still

based on the traditional notion that the individual is an inappropriate subject of

international law and hence must have recourse to his or her state of nationality for

protection. The theory underlying the system is that injury to a national abroad is

injury to the individual’s state of nationality. The interest of the state is in the

redress of the injury to itself and not of the injury to the individual. Individuals,

therefore, are at the mercy of their own state. States enjoy discretion whether or not

to espouse claims raised by individuals in their own behalf. States might see their

own sovereign interests as overriding whatever private interests their nationals

might have. Moreover, as indicated in the Nottebohm case in Chapter 8, in the case

of persons holding dual nationality, an “effective national link” with the person

must exist for a state’s interest in an individual to be recognized by other states.

Corporations and Shareholders

The doctrine of “effective link” as applied to corporations received treatment

in the Barcelona Traction Case.' The claim, which was brought before the Court

on 19 June 1962, arose out of the adjudication in bankruptcy in Spain of Barcelona

Traction, a company incorporated in Canada. The claim’s object was to seek

reparation for damage alleged by Belgium to have been sustained by Belgian

nationals, shareholders in the company, as a result of acts said to be contrary to

international law committed towards the company by organs of the Spanish State.

The Court found that Belgium lacked jus standi to exercise diplomatic

protection of shareholders in a Canadian company with respect to measures taken

against that company in Spain. It observed that when a State admits into its territory

foreign investments or foreign nationals it is bound to extend to them the protection

of the law and to assume obligations concerning the treatment to be afforded them.

But such obligations are not absolute. In order to bring a claim in respect

'Belgium v. Spain, (1970) ICJ Rep.

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225

of the breach of such an obligation, a State must first establish its right to do so.

The breach, if any, was committed in this case against the company. Only the

company, which was endowed with legal personality, could take action in respect of

matters that were of a corporate character. It may be true that a wrong done to the

company frequently causes prejudice to its shareholders; but this does not imply

that both are entitled to claim compensation. Whenever a shareholder’s interests are

harmed by an act done to the company, it is to the latter that he has to look to

institute appropriate action. An act infringing only the company’s rights do not

involve responsibility towards the shareholders, even if their interests are affected.

In order for the situation to be different, the act complained of must be aimed at the

direct rights of the shareholder as such, which was not the case here.

As to who should have the right to protect the corporation, Barcelona

Traction says that it is the state of nationality of the corporation, in this case

Canada, which has the right, and not Belgium.

Standard for the Protection of Aliens

What is the international standard for the protection of aliens? International

law has gone a long way from ancient times when aliens were treated as “outlaws”

not deserving protection. Roman law progressed from this under the concept of jus

gentium, which was applicable to both citizens and aliens, as distinct from jus civile

which was applicable only to Roman citizens. The advent of Christianity further

improved the condition of aliens. The rights of aliens expanded further with the

growth of international commerce in modem times leading to development of the

concept of “denial of justice” as an international concern.

Two standards have emerged in modem times to compete for recognition as

the acceptable standard. The first is what is called the doctrine of “national

treatment” or “equality of treatment.” Aliens are treated in the same manner as

nationals of the state where they reside. There is a bright side and a dark side to this

doctrine. The bright side is that aliens would enjoy the same benefits as local

nationals. The dark side is that, if the state is tyrannical and its municipal laws are

harsh and violative of human rights even of its own citizens, then aliens would

likewise be subject to such harsh laws.

226 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The other standard is called the “minimum international standard” which

says that, however harsh the municipal laws might be against a state’s own citizens,

aliens should be protected by certain minimum standards of humane protection.

This is now the widely accepted standard.

The “minimum standard” is obviously abstract and it is not easy to

determine what its contents are. An elaboration of this abstract standard may be

seen in a quotation from the resolution of the Neer Claim? Mr. Neer was a US

national working in Mexico. He was stopped by armed men and shot to death. It

was claimed that the Mexican government had been negligent in their investigation

of the murder. This was rejected by the Joint Claims Commission saying:

. . . [w]ithout attempting to announce a precise formula, it is in

the opinion of the Commission possible to hold (first) that the

propriety of the government acts should be put to the tests of

international standards, and (second) that the treatment of an alien, in

order to constitute an international delinquency should amount to an

outrage, to bad faith, to willful neglect of duty, or to an insufficiency

of governmental action so far short of international standards that

every reasonable and impartial man would readily recognize its

insufficiency. Whether the insufficiency proceeds from deficient

execution of an intelligent law or from the fact that the laws of the

country do not empower the authorities to measure up to international

standards is immaterial.

The Harvard Draft Convention on the Responsibility of States for Damages

puts it in terms of the more limited concept of “denial of justice.”

Article 9. Denial of justice exists when there is a denial,

unwarranted delay or obstruction of access to courts, gross deficiency

in the administration of judicial or remedial process, failure to provide

those guarantees which are generally considered indispensable to the

proper administration of justice, or a manifestly unjust judgment. An

error of a national court which does not produce manifest injustice is

not denial of justice.

2United States v. Mexico, 4 RIAA (1926).

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227

Enforcement Regimes

The International Court of Justice, when its jurisdiction is appealed to by

states in conflict, can resolve issues of violations of the rights of aliens. However,

claims may also be settled by ad hoc tribunals established for the purpose.

Examples are the US-Iran Claims Tribunal established by the US and Iran to deal

with claims of either party arising from the Islamic Revolution; the UN

Compensation Commission established by the Security Council in 1991 to deal

with claims arising from Iraq’s invasion of Kuwait. States may also enter into lump

sum settlements such as the US-Cambodia (1994) and US-Vietnam (1995) Claims

Settlement Agreements.

Doctrine of State Responsibility.

The customary law doctrine on the protection of aliens should be seen in

relation to the doctrine on “state responsibility.” When an injury has been inflicted,

there is need to determine whether the state can be held responsible for it. One of

the principles most strongly held by states is that if a state violates a customary rule

of international law or a treaty obligation, it commits an “internationally wrongful

act.” The International Law Commission for some years now has been working on

the codification of the law on the subject. At its fifty-third session (2001), the

International Law Commission adopted on second reading a complete text of the

Articles on Responsibility of States for Internationally Wrongful Acts. The Articles

have been referred to the General Assembly for consideration.

Although its work has not yet been finalized, much of what it has done so far

consists of principles which are widely accepted. What need to be understood are:

(1) the elements of an internationally wrongful act; (2) the attributability of the

wrongful act to the state; and (3) the enforcement of the obligation that arises from

the wrongful act. Excerpts from the 2001 Draft of the International Law

Commission will be used as handy guide.

Internationally wrongful act.

Article 1. Responsibility of a State for its internationally

wrongful acts

Every internationally wrongful act of a State entails the

international responsibility of that State.

228 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

States derive immense benefits from the international legal system.

Accordingly, when a state consents to be a part of that system, it also accepts

corresponding legal obligations. Primarily, it must accept responsibility for actions

which have an effect on other international legal persons. This is basically what

Article 1 says. No state can escape this responsibility when once it has committed

an act which satisfies the requirements of an “internationally wrongful act.”

Article 2. Elements of an internationally wrongful act of a

State

There is an internationally wrongful act of a State when conduct

consisting of an action or omission:

(a) Is attributable to the State under international law; and

(b) Constitutes a breach of an international obligation of the

State.

Article 3. Characterization of an act of a State as internationally

wrongful

The characterization of an act of a State as internationally

wrongful is governed by international law. Such characterization is not

affected by the characterization of the same act as lawful by internal

law.

Article 12. Breach of an international obligation

There is a breach of an international obligation by a State when

an act of that State is not in conformity with what is required of it by

that obligation, regardless of its origin or character.

Article 2 says that that the elements of an internationally wrongful act consist

of a subjective and an objective element. The subjective element is that the act must

be attributable not to the persons or agencies who performed it but to the state

itself. The objective element is a violation of an international obligation. It may

consist of something either active (action) or passive (an omission.)

Articles 3 and 12 say that what determines the wrongful character of the act

is international law and not internal law. The international law violated can be

customary or conventional.

Attribution to the State.

The acts which can be attributed to the state may be acts of state organs, the

acts of other persons, or the acts of revolutionaries.

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229

Acts of state organs

Article 4. Attribution to the State of the conduct of its organs

1. For the purposes of the present articles, the conduct of any

State organ acting in that capacity shall be considered an act of that

State under international law, whether the organ exercises legislative,

executive, judicial or any other functions, whatever position it holds in

the organization of the State, and whatever its character as an organ of

the central government or of a territorial unit of the State.

2. For the purposes of paragraph 1, an organ includes any

person or body which has that status in accordance with the internal

law of the State.

Article 5. Attribution to the State of the conduct of entities

exercising elements of the governmental authority.

The conduct of an entity which is not an organ of the State under

Article 4 but which is empowered by the law of that State to exercise

elements of the governmental authority shall be considered an act of

the State under international law, provided the entity was acting in that

capacity in the case in question.

Article 6. Attribution to the State of conduct in fact carried out

on its instructions or under its direction or control.

The conduct of a person or group of persons shall be considered

an act of the State under international law if the person or group of

persons was in fact acting on the instructions of, or under the direction

or control of, that State in carrying out the conduct.

Article 7. Attribution to the State of certain conduct carried out

in the absence of the official authorities

The conduct of a person or group of persons shall be considered

an act of the State under international law if the person or group of

persons was in fact exercising elements of the governmental authority

in the absence or default of the official authorities and in circumstances

such as to call for the exercise of those elements of authority.

Article 8. Attribution to the State of the conduct of organs

placed at its disposal by another State

The conduct of an organ placed at the disposal of a State by

another State shall be considered an act of the former State under

230 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

international law if the organ was acting in the exercise of elements of

the governmental authority of the State at whose disposal it had been

placed.

Article 9. Attribution to the State of the conduct of organs acting

outside their authority or contrary to instructions.

The conduct of an organ of a State or of an entity empowered to

exercise elements of the governmental authority, such organ or entity

having acted in that capacity, shall be considered an act of the State

under international law even if, in the particular case, the organ or

entity exceeded its authority or contravened instructions concerning its

exercise.

CAIRE CLAIM

France v. Mexico (1929)

French-Mexican Claims Commission

[Caire, a French national, was killed in Mexico by Mexican

soldiers after they had demanded money from him.]

Verzijl, Presiding Commissioner

(4) Responsibility of Mexico for actions of individual military

personnel, acting without orders or against the wishes of their

commanding officers and independently of the needs and aims of the

revolution...

In approaching the examination of the questions indicated under

4 in the light of the general principles I have just outlined, I should like

to make clear first of all that I am interpreting the said principles in

accordance with the doctrine of the “objective responsibility” of the

States, that is, the responsibility for the acts of the officials or organs

of a State, which may devolve upon it even in the absence of any

“fault” of its own. It is widely known that theoretical conceptions in

this sphere have advanced a great deal in recent times, and that the

innovating work of Dionisio Anzilotti in particular has paved the way

for new ideas, which no longer rank the responsibility of the State for

the acts of its officials as subordinate to the question of the “fault”

attaching to the State itself. Without going into the question of whether

these new ideas, which are perhaps too absolute, may require some

modifications in the direction proposed by Dr. Karl Strupp, I can say

that I regard them as perfectly correct in that they tend to impute to the

State, in international affairs, the responsibility for all the acts

committed by its officials or organs which constitute

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offences from the point of view of the law of nations, whether the

official or organ in question has acted within or exceeded the limits of

his competence. “It is generally agreed,” as M. Bourquin has rightly

said, “that acts committed by the officials and agent of a State entail

the international responsibility of that State, even if the perpetrator did

not have specific authorization. This responsibility does not find its

justification in general principles — I mean those principles regulating

the judicial organization of the State. The act of an official is only

judicially established as an act of State if such an act lies within the

official’s sphere of competence. The act of an official operating

beyond this competence is not an act of State. It should not in

principle, therefore, affect the responsibility of the State. If its is

accepted in international law that the position is different, it is for

reasons peculiar to the mechanism of international life; it is because it

is felt that international relations would become too difficult, too

complicated and too insecure if foreign States were obliged to take into

account the often complex judicial arrangements that regulate

competence in the international affairs of a State. From this it is

immediately clear that in the hypothesis under consideration the

international responsibility of the State is purely objective in character,

and that it rests on an idea of guarantee, in which the subjective notion

of fault plays no part.”

But in order to be able to admit this so-called objective

responsibility of the State for acts committed by its officials or organs

outside their competence, they must have acted at least to all

appearances as competent officials or organs, or they must have used

powers or methods appropriate to their official capacity. ...

If the principles stated above are applied to the present case, and

if it is taken into account that the perpetrators of the murder of MJ.B.

Caire were military personnel occupying the ranks of “mayor” and

“capitan primero” aided by a few privates, it is found that the

conditions of responsibility formulated above are completely fulfilled.

The officers in question, whatever their previous record, consistently

conducted themselves as officers in the brigade of the Villista general,

Tomas Urbina; in this capacity they began by exacting the remittance

of certain sums of money; they continued by having the victim taken to

a barracks of the occupying troops; and it was clearly because of the

refusal of M. Caire to meet their repeated demands that they finally

shot him. Under these circumstances, there remains no doubt that, even

if they are to be regarded as having acted outside their competence,

which is by no means certain, and even if their superior officers issued

232 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

counter-order, these two officers have involved the responsibility of

the State, in view of the fact that they acted in their capacity of officers

and used the means placed at their disposition by virtue of that

capacity.

On these grounds, I have no hesitation in stating that, in

accordance with the most authoritative doctrine supported by

numerous arbitral awards, the events of 11 December 1914, which led

to the death of M J.-B. Caire, fall within the category of acts for which

international responsibility devolves upon the State to which the

perpetrators of the injury are amenable.

CORFU CHANNEL CASE UK

v. Albania, [1949] ICJ Rep.

The Corfu Channel Case (United Kingdom of Great Britain and

Northern Ireland-Albania) arose from incidents that occurred on

October 22nd 1946, in the Corfu Strait: two British destroyers struck

mines in Albanian waters and suffered damage, including serious loss

of life. The two Parties concluded a Special Agreement asking the

Court to give judgment on the following questions:

1. Is Albania responsible for the explosions, and is

there a duty to pay compensation?

2. Has the United Kingdom violated international law

by the acts of its Navy in Albanian waters, first on the day on

which the explosions occurred and, secondly, on November

12th and 13th, 1946, when it undertook a sweep of the Strait?

* * * * *

The facts are as follows. On October 22nd, 1946, two British

cruisers and two destroyers, coming from the south, entered the North

Corfu Strait. The channel they were following, which was in Albanian

waters, was regarded as safe: it had been swept in 1944 and checkswept in 1945. One of the destroyers, the Saumarez, when off Saranda,

struck a mine and was gravely damaged. The other destroyer, the

Volage, was sent to her assistance and, while towing her, struck

another mine and was also seriously damaged. Forty-five British

officers and sailors lost their lives, and forty-two others were

wounded.

An incident had already occurred in these waters on May 15th,

1946: an Albanian battery had fired in the direction of two

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233

British cruisers. The United Kingdom Government had protested,

stating that innocent passage through straits is a right recognized by

international law; the Albanian Government had replied that foreign

warships and merchant vessels had no right to pass through Albanian

territorial waters without prior authorization; and on August 2nd, 1946,

the United Kingdom Government had replied that if, in the future, fire

was opened on a British warship passing through the channel, the fire

would be returned. Finally, on September 21st, 1946, the Admiralty in

London had cabled to the British Commander-in-Chief in the

Mediterranean to the following x effect: “Establishment of diplomatic

relations with Albania is again under consideration by His Majesty’s

Government who wish to know whether the Albanian Government

have learnt to behave themselves. Information is requested whether

any ships under your command have passed through the North Corfu

Strait since August and, if not, whether you intend them to do so

shortly.”

After the explosions on October 22nd, the United Kingdom

Government sent a Note to Tirana announcing its intention to sweep

the Corfu Channel shortly. The reply was that this consent would not

be given unless the operation in question took place outside Albanian

territorial waters and that any sweep undertaken in those waters would

be a violation of Albania’s sovereignty.

The sweep effected by the British Navy took place on

November 12th/13th 1946, in Albanian territorial waters and within

the limits of the channel previously swept. Twenty-two moored mines

were cut; they were mines of the German GY type.

The first question put by the Special Agreement is that of

Albania’s responsibility, under international law, for the explosions on

October 22nd, 1946.

The Court finds, in the first place, that the explosions were

caused by mines belonging to the minefield discovered on November

13th. It is not, indeed, contested that this minefield had been recently

laid; it was in the channel, which had been previously swept and

check-swept and could be regarded as safe, that the explosions had

taken place. The nature of the damage shows that it was due to mines

of the same type as those swept on November 13th; finally, the theory

that the mines discovered on November 13th might have been laid

after the explosions on October 22nd is too improbable to be accepted.

In these circumstances the question arises what is the legal basis

of Albania’s responsibility? The Court does not feel that it

234 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

need pay serious attention to the suggestion that Albania herself laid

the mines: that suggestion was only put forward pro memoria, without

evidence in support, and could not be reconciled with the undisputed

fact that, on the whole Albanian littoral, there are only a few launches

and motor boats. But the United Kingdom also alleged the connivance

of Albania: that the mine laying had been carried out by two Yugoslav

warships by the request of Albania, or with her acquiescence. The

Court finds that this collusion has not been proved. A charge of such

exceptional gravity against a State would require a degree of certainty

that has not been reached here, and the origin of the mines laid in

Albanian territorial waters remains a matter for conjecture.

The United Kingdom also argued that, whoever might be the

authors of the mine laying, it could not have been effected without

Albania’s knowledge. True, the mere fact that mines were laid in

Albanian waters neither involves prima facie responsibility nor does it

shift the burden of proof. On the other hand, the exclusive control

exercised by a State within its frontiers may make it impossible to

furnish direct proof of facts which would involve its responsibility in

case of a violation of international law. The State which is the victim

must, in that ease, be allowed a more liberal recourse to inferences of

fact and circumstantial evidence; such indirect evidence must be

regarded as of especial weight when based on a series of facts, linked

together and leading logically to a single conclusion.

In the present case two series of facts, which corroborate one

another, have to be considered.

The first relates to the Albanian Government’s attitude before

and after the catastrophe. The laying of the mines took place in a

period in which it had shown its intention to keep a jealous watch on

its territorial waters and in which it was requiring prior authorization

before they were entered, this vigilance sometimes going so far as to

involve the use of force: all of which render the assertion of ignorance

a priori improbable. Moreover, when the Albanian Government had

become fully aware of the existence of a minefield, it protested

strongly against the activity of the British Fleet, but not against the

laying of the mines, though this act, if effected without her consent,

would have been a very serious violation of her sovereignty; she did

not notify shipping of the existence of the minefield, as would be

required by international law; and she did not undertake any of the

measures of judicial investigation which would seem to be incumbent

on her in such

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STATE RESPONSIBILITY

a case. Such an attitude could only be explained if the Albanian

Government, while knowing of the mine laying, desired the

circumstances in which it was effected to remain secret.

The second series of facts relates to the possibility of observing

the mine laying from the Albanian coast. Geographically, the channel

is easily watched: it is dominated by heights offering excellent

observation points, and it runs close to the coast (the nearest mine was

500 m. from the shore). The methodical and well-thought-out laying of

the mines compelled the minelayers to remain from two to two-and-ahalf hours in the waters between Cape Kiephali and the St. George’s

Monastery. In regard to that point, the naval experts appointed by the

Court reported, after enquiry and investigation on the spot, that they

considered it to be indisputable that, if a normal look-out was kept at

Cape Kiephali, Denta Point, and St. George’s Monastery, and if the

lookouts were equipped with binoculars, under normal weather

conditions for this area, the mine-laying operations must have been

noticed by these coastguards. The existence of a look-out post at Denta

Point was not established; but the Court, basing itself on the

declarations of the Albanian Government that lock-out posts were

stationed at other points, refers to the following conclusions in the

experts’ report: that in the case of mine laying 1) from the North

towards the South, the minelayers would have been seen from Cape

Kiephali; if from South towards the North, they would have been seen

from Cape Kiephali and St. George’s Monastery.

From all the facts and observations mentioned above, the Court

draws the conclusion that the laying of the minefield could not have

been accomplished without the knowledge of Albania. As regards the

obligations resulting for her from this knowledge, they are not

disputed. It was her duty to notify shipping and especially to warn the

ships proceeding through the Strait on October 22nd of the danger to

which they were exposed. In fact, nothing was attempted by Albania to

prevent the disaster, and these grave omissions involve her

international responsibility.

NICARAGUA V. US

[1986] ICJ Rep.

VI. Establishment of the facts: evidence and methods

employed by the Court

The Court has had to determine the facts relevant to the dispute.

The difficulty of its task derived from the marked disagreement

between the Parties, the non-appearance of the

236 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Respondent, the secrecy surrounding certain conduct, and the fact that

the conflict is continuing. On this last point, the Court takes the view,

in accordance with the general principles as to the judicial process, that

the facts to be taken into account should be those occurring up to the

close of the oral proceedings on the merits of the case (end of

September 1985).

With regard to the production of evidence, the Court indicates

how the requirements of its Statute in particular Article 53 and the

Rules of Court have to be met in the case, on the basis that the Court

has freedom in estimating the value of the various elements of

evidence. It has not seen fit to order an enquiry under Article 50 of the

Statute. With regard to certain documentary material (press articles

and various books), the Court has treated these with caution. It regards

than not as evidence capable of proving facts, but as material which

can nevertheless contribute to corroborating the existence of a fact and

be taken into account to show whether certain facts are matters of

public knowledge. With regard to statements by representatives of

States, sometimes at the highest level, the Court takes the view that

such statements are of particular probative value when they

acknowledge facts or conduct unfavourable to the State represented by

the person who made them. With regard to the evidence of witnesses

presented by Nicaragua; five witnesses gave oral evidence and another

a written affidavit-one consequence of the absence of the Respondent

was that the evidence of the witnesses was not tested by crossexamination. The Court has not treated as evidence any part of the

testimony which was a mere expression of opinion as to the

probability or otherwise of the existence of a fact not directly known

to the witness. With regard in particular to affidavits and sworn

statements made by members of a Government, the Court considers

that it can certainly retain such parts of this evidence as may be

regarded as contrary to the interests or contentions of the State to

which the witness has allegiance; for the rest such evidence has to be

treated with great reserve.

The Court is also aware of a publication of the United States

State Department entitled “Revolution Beyond Our Borders,

Sandinista Intervention in Central America” which was not submitted

to the Court in any form or manner contemplated by the Statute and

Rules of Court. The Court considers that, in view of the special

circumstances of this case, it may, within limits, make use of

information in that publication.

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237

VII. The facts imputable to the United States

1. The Court examines the allegations of Nicaragua that the

mining of Nicaraguan ports or waters was carried out by United

States military personnel or persons of the nationality of Latin

American countries in the pay of the United States. After examining

the facts, the Court finds it established that, on a date in late 1983 or

early 1984, the President of the United States authorized a United

States Government agency to lay mines in Nicaraguan ports, that in

early 1984 mines were laid in or close to the ports of El Bluff,

Corinto and Puerto Sandino, either in Nicaraguan internal waters or in

its territorial sea or both, by persons in the pay and acting on the

instructions of that agency, under the supervision and with the logistic

support of United States agents; that neither before the laying of the

mines, nor subsequently, did the United States Government issue any

public and official warning to international shipping of the existence

and location of the mines; and that personal and material injury was

caused by the explosion of the mines, which also created risks

causing a rise in marine insurance rates.

2. Nicaragua attributes to the direct action of United States

personnel, or persons in its pay, operations against oil installations, a

naval base, etc., listed in paragraph 81 of the Judgment. The Court

finds all these incidents, except three, to be established. Although it is

not proved that any United States military personnel took a direct part

in the operations, United States agents participated in the planning,

direction and support. The imputability to the United States of these

attacks appears therefore to the Court to be established.

3. Nicaragua complains of infringement of its air space by

United States military aircraft. After indicating the evidence

available, the Court finds that the only violations of Nicaraguan air

space imputable to the United States on the basis of the evidence are

high altitude reconnaissance flights and low altitude flights on 7 to 11

November 1984 causing “sonic booms.”

With regard to joint military manoeuvres with Honduras

carried out by the United States on Honduran territory near the

Honduras/Nicaragua frontier, the Court considers that they may be

treated as public knowledge and thus sufficiently established.

4. The Court then examines the genesis, development and

activities of the contra force, and the role of the United States in

relation to it. According to Nicaragua, the United States “con

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

ceived, created and organized a mercenary army, the contra

force.” On the basis of the available information, the Court is not able

to satisfy itself that the Respondent State “created” the contra force in

Nicaragua, but holds it established that it largely financed, trained,

equipped, armed and organized the FDN, one element of the force.

It is claimed by Nicaragua that the United States Government

devised the strategy and directed the tactics of the contra force, and

provided direct combat support for its military operations. In the light

of the evidence and material available to it, the Court is not satisfied

that all the operations launched by the contra force, at every stage of

the conflict, reflected strategy and tactics solely devised by the United

States. It therefore cannot uphold the contention of Nicaragua on this

point. The Court however finds it clear that a number of operations

were decided and planned, if not actually by the United States

advisers, then at least in close collaboration with them, and on the

basis of the intelligence and logistic support which the United States

was able to offer. It is also established in the Court’s view that the

support of the United States for the activities of the contras took

various forms over the years, such as logistic support the supply of

information on the location and movements of the Sandinista troops,

the use of sophisticated methods of communication, etc. The

evidence does not however warrant a finding that the United States

gave direct combat support, if that is taken to mean direct

intervention by United States combat forces.

The Court has to determine whether the relationship of the

contras to the United States Government was such that it would be

right to equate the contras, for legal purposes, with an organ of the

United States Government, or as acting on behalf of that Government.

The Court considers that the evidence available to it is insufficient to

demonstrate the total dependence of the contras on United States aid.

A partial dependency, the exact extent of which the Court cannot

establish, may be inferred from the fact that the leaders were selected

by the United States, and from other factors such as the organization,

training and equipping of the force, planning of operations, the

choosing of targets and the operational support provided. There is no

clear evidence that the United States actually exercised such a degree

of control as to justify treating the contras as acting on its behalf.

5. Having reached the above conclusion, the Court takes

the view that the contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law. For the

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239

United States to be legally responsible, it would have to be proved

that that State had effective control of the operations in the course of

which the alleged violations were committed.

Acts of Other Persons

Article 7. The conduct of a person or group of persons shall be

considered an act of the State under international law if the person or

group of persons was in fact exercising elements of the governmental

authority in the absence or default of the official authorities and in

circumstances such as to call for the exercise of those elements of

authority.

Article 8. The conduct of an organ placed at the disposal of a

State by another State shall be considered an act of the former State

under international law if the organ was acting in the exercise of

elements of the governmental authority of the State at whose disposal

it had been placed.

UNITED STATES V. IRAN [1980] ICJ Rep.

In its Judgment in the case concerning United States

Diplomatic and Consular Staff in Tehran, the Court decided (1) that

Iran has violated and is skill violating obligations owed by it to the

United States; (2) that these violations engage Iran’s responsibility;

(3) that the Government of Iran must immediately release the United

States nationals held as hostages and place the premises of the

Embassy in the hands of the protecting power; (4) that no member of

the United States diplomatic or consular staff may be kept in Iran to

be subjected to any form of judicial proceedings or to participate in

them as a witness; (5) that Iran is under an obligation to make

reparation for the injury caused to the United States, and (6) that the

form and amount of such reparation, failing agreement between the

parties, shall be settled by the Court. (The full text of the operative

paragraph is reproduced below.)

(a) The events of 4 November 1979 (paras. 56-68)

The first phase of the events underlying the Applicant’s claims

covers the armed attack on the United States Embassy carried out on 4

November 1979 by Muslim Student Followers of the Imam’s Policy

(further referred to as “the militants” in the Judgment), the

overrunning of its premises, the seizure of its inmates as hostages,

240 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

the appropriation of its property and archives, and the conduct of the

Iranian authorities in the face of these occurrences.

The Court points out that the conduct of the militants on that

occasion could be directly attributed to the Iranian State only if it

were established that they were in fact acting on its behalf. The

information before the Court did not suffice to establish this with due

certainty. However, the Iranian State which, as the State to which the

mission was accredited, was under obligation to take appropriate

steps to protect the United States Embassy did nothing to prevent the

attack, stop it before it reached its completion or oblige the militants

to withdraw from the premises and release the hostages. This inaction

was in contrast with the conduct of the Iranian authorities on several

similar occasions at the same period, when they had taken appropriate

steps. It constituted, the Court finds, a clear and serious violation of

Iran’s obligations to the United States under Articles 22(2),

24,25,26,27 and 29 of the 1961 Vienna Convention on Diplomatic

Relations, of Articles 5 and 36 of the 1963 Vienna Convention on

Consular Relations, and of Article 11(4) of the 1955 Treaty. Further

breaches of the 1963 Convention had been involved in failure to

protect the Consulates at Tabriz and Shiraz.

The Court is therefore led to conclude that on 4 November

1979 the Iranian authorities were fully aware of their obligations

under the conventions in force, and also of the urgent need for action

on their part, that they had the means at their disposal to perform their

obligations, but that they completely failed to do so.

(b) Events since 4 November 1979 (paras. 69-79)

The second phase of the events underlying the United States’

claims comprises the whole series of facts which occurred following

the occupation of the Embassy by the militants. Though it was the

duty of the Iranian Government to take every appropriate step to end

the infringement of the inviolability of the Embassy premises and

staff, and to offer reparation for the damage, it did nothing of the

kind. Instead, expressions of approval were immediately heard from

numerous Iranian authorities. Ayatollah Khomeini himself

proclaimed the Iranian State’s endorsement of both the seizure of the

premises and the detention of the hostages. He described the Embassy

as a “centre of espionage,” declared that the hostages would (with

some exceptions) remain “under arrest” until the United States had

returned the former Shah and his property to Iran, and forbade all

negotiation with the United

CHAPTER 11

STATE RESPONSIBILITY

States on the subject. Once organs of the Iranian State had thus given

approval to the acts complained of and decided to perpetuate them as

a means of pressure on the United States, those acts were transformed

into acts of the Iranian State: the militants became agents of that

State, which itself became internationally responsible for their acts.

During the six months which ensued, the situation underwent no

material change: the Court’s Order of 15 December 1979 was

publicly rejected by Iran, while the Ayatollah declared that the

detention of the hostages would continue until the new Iranian

parliament had taken a decision as to their fate.

The Iranian authorities’ decision to continue the subjection of

the Embassy to occupation, and of its staff to detention as hostages,

gave rise to repeated and multiple breaches of Iran’s treaty

obligations, additional to those already committed at the time of the

seizure of the Embassy. (1961 Convention: Arts. 22, 24, 25,

26, 27 and 29 1963 Convention: inter alia, Art. 33; 1955 Treaty,

Art. 1114]).

With regard to the Charge d’affaires and the two other members of the United States mission who have been in the Iranian

Ministry of Foreign Affairs since 4 November 1979, the Court finds

that the Iranian authorities have withheld from them the protection

and facilities necessary to allow them to leave the Ministry in safety.

Accordingly, it appears to the Court that in their respect there have

been breaches of Articles 26 and 29 of the 1961 Vienna Convention.

Taking note, furthermore, that various Iranian authorities have

threatened to have some of the hostages submitted to trial before a

court, or to compel them to bear witness, the Court considers that, if

put into effect, that intention would constitute a breach of Article 31

of the same Convention.

Acts of Revolutionaries

Article 10. Conduct of an insurrectional or other movement

1. The conduct of an insurrectional movement, which

becomes the new government of a State, shall be considered an act of

that State under international law.

2. The conduct of a movement, insurrectional or other,

which succeeds in establishing a new State in part of the territory of a

pre-existing State or in a territory under its administration shall be

considered an act of the new State under international law.

242 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

3. This article is without prejudice to the attribution to a

State of any conduct, however related to that of the movement

concerned, which is to be considered an act of that State by virtue of

articles 4 to 9.

HOME MISSIONARY SOCIETY CLAIM UJS. v. Great Britain

(1920)

American and British Claims Arbitration Tribunal

In 1898, the collection of a tax newly imposed [by Great

Britain] on the natives of the Protectorate [of Sierra Leone] and

known as the “hut tax” was the signal for a serious and widespread

revolt in the Ronietta district. The revolt broke out on April 27 and

lasted for several days....

In the course of the rebellion all [the claimant’s]... Missions

were attacked, and either destroyed or damaged, and some of the

missionaries were murdered....

The contention of the United States Government before this

Tribunal is that the revolt was the result of the imposition and

attempted collection of the “hut tax”; that it was within the knowledge

of the British Government that this tax was the object of deep native

resentment; that in the face of the native danger the British

Government wholly failed to take proper steps for the maintenance of

order and the protection of life and property; that the loss of life and

damage to property was the result of this neglect and failure of duty,

and therefore that it is liable to pay compensation.

Now, even assuming that the “hut tax” was the effective cause

of the native rebellion, it was in itself a fiscal measure in accordance

not only with general usage in colonial administration, but also with

the usual practice in African countries....

It was a measure to which the British Government was perfectly entitled to resort in the legitimate exercise of its sovereignty, if

it was required....

Further, though it may be true that some difficulty might have

been foreseen, there was nothing to suggest that it would be more

serious than is usual and inevitable in a semi-barbarous and only

partially colonized protectorate, and certainly nothing to lead to any

apprehension of widespread revolt.

It is well-established principle of international law that no

government can be held responsible for the act of rebellious bodies of

men committed in violation of its authority, where it

CHAPTER 11

STATE RESPONSIBILITY

243

is itself guilty of no breach of good faith, or of no negligence in

suppressing insurrection. (Moore’s INTERNATIONAL LAW DIGEST, Vol. VI, p. 956;

VII, p. 957; Moore’s ARBITRATIONS, pp. 2991-92; British answer, p. 1)

The good faith of the British Government cannot be

questioned, and as to the conditions prevailing in the Protectorate

there is no evidence to support the contention that it failed in its duty

to afford to adequate protection for life and property. ...

The Tribunal decides that this claim must be dismissed.

SHORT v. IRAN

UJS. v. Iran (1987)

Iran-U.S. Claims Tribunal

The claimant, an American national, was employed by Lockheed, an American company, in Iran. On February 8, 1979, three days

before the Islamic Revolutionary Government took office, the

claimant was evacuated from Iran on company orders because of the

deteriorating situation. The claimant sought compensation for salary

and other losses resulting from his alleged expulsion contrary to

international law.

33. Where a revolution leads to the establishment of a new

government the State is held responsible for the acts of the

overthrown government insofar as the latter maintained control of the

situation. The successor government is also held responsible for the

acts imputable to the revolutionary movement which established it,

even if those acts occurred prior to its establishment, as a

consequence of the continuity existing between the new organization

of the State and the organization of the revolutionary movement. See

Draft Articles on State Responsibility, supra, Commentary on

Articuel 15, paras. 3 and 4....

34. The Claimant relies on acts committed by revolutionaries. ... He is unable, however, to identify any agent of the

revolutionary movement, the actions of which compelled him to leave

Iran. The acts of supporters of a revolution [as opposed to its agents]

cannot be attributed to the government following the success of the

revolution just as the acts of supporters of an existing government are

not attributable to the government. This was clearly recalled by the

International Court of Justice in United States Diplomatic and

Consular Staff in Tehran (United States v. Iran), 19801.CJ. 3,29,

para. 58 [above, p. 358]....

244 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

35. The Claimant.... [relies] on the declarations made by the

leader of the Revolution, Ayatollah Khomeini... While these

statements are of anti-foreign and in particular anti-American

sentiments, the Tribunal notes that these pronouncements were of a

general nature and did not specify that Americans should be expelled

en masse. On this issue also, it is worthwhile to quote the

International Court of Justice, in the judgment [para. 59] just referred

to [above, p. 359], ... Similarly, it cannot be said that the declarations

referred to by the Claimant amounted to an authorization to

revolutionaries to act in such a way that the Claimant should be

forced to leave Iran forthwith. Nor is there any evidence that any

action prompted by such statements was the caused of the Claimant’s

decision to leave Iran. In these circumstances, the Tribunal is of the

view that the Claimant has failed to prove that his departure from Iran

can be imputed to the wrongful conduct of Iran. The claim is

therefore dismissed.

Preliminary Objections.

When brought before an international tribunal, the claim of denial of justice

may be lost due to failure to answer some preliminary objections. One objection

already seen is the lack of nationality link.

Another is the failure to exhaust national remedies. The obvious purpose of

this rule is to protect international courts from being swamped with cases which

are better handled locally. However, this rule applies only to cases founded on

diplomatic protection or on injury to aliens. Where the case is one involving a

treaty that touches on state rights which should be resolved on the international

plain. Similarly, where a case involves a treaty which establishes a Claims

Commission, it immediately goes to the Commission.

Reparation.

Article 31. Reparation

1. The responsible State is under an obligation to make full

reparation for the injury caused by the internationally wrongful act.

2. Injury consists of any damage, whether material or

moral, arising in consequence of the internationally wrongful act of a

State.

CHAPTER 11

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245

Article 32. Irrelevance of internal law

The responsible State may not rely on the provisions of its

internal law as justification for failure to comply with its obligations

under this Part.

CHORZOW FACTORY CASE

Germany v. Poland [1928] PCIJ

[The case concerned the expropriation by Poland of a

factory at Chorzow contrary, as the Court had held, to the

Geneva Convention of 1922 between Germany and Poland on

Upper Silesia. In this judgment the Court ruled upon a claim

by Germany for an indemnity for the damage caused by the

illegal expropriation.]

The action of Poland which the Court has judged to be contrary

to the Geneva Convention is not an expropriation — to render which

lawful only the payment of fair compensation would have been

wanting; it is a seizure of property, rights and interests which could

not be expropriated even against compensation, save under the

exceptional conditions fixed by Article 7 of the said Convention....

If follows that the compensation due to the German

Government is not necessarily limited to the value of the undertaking

at the moment of dispossession, plus interest to the day of payment.

This limitation would only be admissible if the Polish Government

had the right to expropriate, and if its wrongful act consisted merely

in not having paid to the two Companies the just price of what was

expropriated; in the present case, such a limitation might result in

placing Germany and the interests protected by the Geneva

Convention, on behalf of which interests the German Government is

acting, in a situation more unfavourable than that in which Germany

and these interest would have been if Poland had respected the said

Convention. Such a consequence would not only be unjust, but also

and above all incompatible with the aim of Article 6 and following

articles of the Convention

— that is to say, the prohibition, in principle, of the liquidation of the

property, rights and interests of German nationals and of companies

controlled by German nationals in Upper Silesia — since it would be

tantamount to rendering lawful liquidation and unlawful

dispossession indistinguishable in so far as their financial results are

concerned.

The essential principle contained in the actual notion of an

illegal act — a principle which seems to be established by interna-

246 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

tional practice and in particular by the decisions of arbitral tribunals

— is that reparation must, as far as possible, wipe out all the

consequences of the illegal act and re-establish the situation which

would, in all probability, have exited if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a

sum corresponding to the value which a restitution in kind would

bear; the award, if need be, of damages for loss sustained which

would not be covered by restitution in kind or payment in place of it

— such are the principles which should serve to determine the

amount of compensation due for an act contrary to international law.

This conclusion particularly applies as regards the Geneva

Convention, the object of which it to provide for the maintenance of

economic life in Upper Silesia on the basis of respect for the status

quo. The dispossession of an industrial undertaking — the

expropriation of which is prohibited by the Geneva Convention

— then involves the obligation to restore the undertaking and, if this

be not possible, to pay its value at the time of the indemnification,

which value is designed to take the place of restitution which has

become impossible. To this obligation, in virtue of the general

principles of international law, must be added that of compensating

loss sustained as the result of the seizure. The impossibility, on which

the Parties are agreed, of restoring the Chorzow factory could

therefore have no other effect but that of substituting payment of the

value of the undertaking for restitution; it would not be in conformity

either with the principles of law or with the wish of the Parties to

infer from that agreement that the question of compensation must

henceforth be dealt with as though an expropriation properly socalled was involved.

Calvo Clause Rejected.

In the past, there were attempts to limit the ability of a state to give

diplomatic protection to its nationals. An example of this is the “Calvo clause, ” a

provision in a contract to the effect that “under no condition shall the intervention

of foreign diplomatic agents in any matter related to the contract” be resorted to.

This was rejected in North American Dredging Company Claim (1926) by the

Mexico-United States General Claims Commission. The right to seek redress is a

sovereign prerogative of a state and a private individual has no right to waive the

state’s right.

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247

Expropriation of Alien Property.

Expropriation is the taking of property by the state. The property can be

tangible or intangible as in the case of valuable contractual rights. Expropriation

can be an international wrong if it is done contrary to the principles of

international law. What are these principles?

The principles may be drawn from a 1962 UN General Assembly

Resolution on the Sovereignty over Natural Resources which states, among others,

that the expropriation “shall be based on grounds or reasons of public utility,

security or the national inters which are recognized as overriding purely individual

or private interests, both domestic and foreign. In such cases the owner shall be

paid appropriate compensation in accordance with the rules in force in the state

taking such measures in the exercise of its sovereignty and in accordance with

international law.”

The rule thus recognizes the power of eminent domain as an inherent power

of sovereignty. The rule conforms with the constitutional principles of public use

and just compensation. But international case law on the subject, generally

between developed and developing countries, is not without disputations.

Chapter 12

INTERNATIONAL HUMAN RIGHTS LAW

From Alien Rights to Human Rights.

Early concern about human rights was about specific classes of peoples,

e.g., slaves, minorities, and certain nationalities. It was not until the birth of the

United Nations that human rights of all people became the subject of legislation.

Thus, the developing doctrine on the subject is antedated by the doctrines on

humanitarian intervention, state responsibility for injury to aliens, protection of

minorities, League of Nation’s Mandates and Minorities Systems, and

international humanitarian law (which is the human rights law in time of war).

Human rights, in general terms, are those inalienable and fundamental

rights which are essential for life as human beings. But there is no agreement as to

what these rights are. In fact, there are those who are of the view that the very

widespread offences against human integrity and dignity are evidence that argue

against the existence of human rights principles in international law. This is a

profoundly negative view that must be rejected as a justification for barbarity.

There is a connection between human rights on the one hand and ethics and

morality on the other. A distinction can perhaps be made between what are

considered human rights precepts and the differing justification for the existence

of such precepts. As Jacques Maritain wrote in 1949, “I am quite certain that my

way of justifying belief in the rights of man and the ideal of liberty, equality,

fraternity is the only way with a firm foundation in truth. This does not prevent me

from being in agreement on these practical convictions with people who are

certain that their way of justifying them, entirely different from mine or opposed

to mine,... is equally the only way founded upon truth.”

Asian thinkers claim that much of what are called human rights are Western

concepts alien to Asian culture. Nevertheless the common

248

CHAPTER 12

INTERNATIONAL HUMAN RIGHTS LAW

249

denominator between Asian and Western view so far is the belief that the

individual must be protected and that the international community must contribute

to the protection, even if between the two views there might be differing

emphases: emphasis on the individual in the western (read American) outlook and

emphasis on the community in what is called “Confucian.”

In general the Western tradition has developed from the Natural Law view

that certain rights exist as a result of a law higher than positive or man-made law.

And this higher law itself flows from the nature of man which demands certain

immunities or liberties. This view flourished in the seventeenth century and

provided a recourse against arbitrary power. Much of what the Natural Law view

held has already become part of customary or conventional law and has served as

a counterforce against a positivist emphasis on the importance of the state.

Literature now speaks of three generations of human rights. The first

generation consists of the traditional civil and fundamental rights; the second

generation, social and economic rights; third generation, right to peace, clean

environment, self-determination, common heritage of mankind, development,

minority rights. However, there is dispute about the cultural in human rights.

An Emerging International Bill of Human Rights.

The immediate impetus for this development was the atrocities committed

by the regime under Adolf Hitler. What distinguishes post- World War II

developments from earlier human rights tradition is the growing acceptance of the

view that the way nations treat people under their jurisdiction is no longer just a

domestic concern but also one that calls for the attention of the international

community. This view represents a chipping away at the old concept of

sovereignty. It recognizes that individuals can be subjects of international law and

that they can find protection and remedies within the international community

against abuses by their own government.

The United Nations became the cradle for the development of the new

international law on human rights. But the U.N. Charter’s own provisions on

human rights were preliminary. They did not make human rights law but they

represented a beginning which later would develop into international law.

250 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The Charter’s Preamble set down a fundamental premise: “faith in

fundamental human rights, in the dignity and worth of the human person, in the

equal rights of men and women.” Its human rights goal was set down in Article

1(3):

To achieve international co-operation in solving international

problems of an economic, social, cultural, or humanitarian character,

and in promoting and encouraging respect for human rights and for

fundamental freedoms for all without distinction as to race, sex,

language, or religion.

The achievement of these purposes was something to be worked

for.

The obligations assumed by the Organization and its Members are listed in

two key articles:

Article 55

With a view to the creation of conditions of stability and well

being which are necessary for peaceful and friendly relations among

nations based on respect for the principles of equal rights and selfdetermination of peoples, the United Nations shall promote:

(a) Higher standards of living, full employment, and

conditions of economic and social progress and development;

(b) Solutions of international economic, social, health, and

related problems; and international cultural and educational

cooperation; and

and fundamental freedoms for all without distinction as to race, sex,

language, or religion.

Article 56

All Members pledge themselves to take joint and separate

action in co-operation with the Organization for the achievement of

the purposes set forth in Article 55.

As is obvious, there are here no definitions of human rights, there is no clear

commitment of Members to avoid violations, and there is set down no instrument

for the correction or vindication of violations of human rights that might occur. In

fact, the sensitivity of nations to their sovereignty is reflected in Article 2(7) of the

U.N. Charter:

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INTERNATIONAL HUMAN RIGHTS LAW

251

Nothing contained in the present Charter shall authorize the

United Nations to intervene in matters which are essentially within

the domestic jurisdiction of any state or shall require the Members to

submit such matters to settlement under the present Charter; but this

principle shall not prejudice the application of enforcement measures

under Chapter VII.

It is also clear, however, that the Charter itself recognized the inadequacy of

the document; hence, through Article 62(2) it authorized the UN Social and

Economic Council (ECOSOC) to “make recommendations for the purpose of

promoting respect for, and the observance of, human rights and fundamental

freedoms for all” and commanded it, through Article 68, largely through the

intervention of American non-governmental organizations, to “set up commissions

in economic and social fields and for the promotion of human rights.”1

Vague as all these were, however, they not only marked the internationalization of human rights but they also set in motion the gradual process of

legislating international human rights law. The first significant milestone in this

process was the promulgation of the Universal Declaration of Human Rights.

The Universal Declaration, after many intricate delays,2 was adopted and

proclaimed by the General Assembly on December 10, 1948. It was, however, not

seen as law but only as “a common standard” for nations to attempt to reach. Its

authority was primarily moral and political.3

It would take another eighteen years

before the United Nations could convert the aspirations of the Declaration into

conventional international law embodied in the International Covenant on Civil

and Political Rights, the International Covenant on Economic, Social and Cultural

Rights and the Optional Protocol to the Covenant on Civil and Political Rights.4

'John P. Humphrey, “THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ITS HISTORY, IMPACT AND JURIDICAL CHARACTER," in B.D.

RAMCHARAN, Ed., HUMAN RIGHTS: THIRTY YEARS AFTER THE UNIVERSAL DECLARATION 21

(1979).

See id. 21-28.

See id. 28-37.

For a detailed history of the formulation of these Covenants, SEE Vratislav Pechota, "THE DEVELOPMENT OF THE

COVENANT ON CIVIL AND POLITICAL RIGHTS" in L. Hbnkin, Ed., THE INTERNATIONAL BILL OF RIGHTS 32-71 (1981).

252 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

There is an important distinction between a mere declaration and a

covenant. As Vratislav Pechota puts it:5

... [a]t the core of an international covenant lies a meeting of

minds of the contracting parties on the specific duties and obligations

they intend to assume, and the agreement that the undertakings must

be effectively performed. A declaration by contrast admits the

presumption that something less than full effectiveness in terms of

law is intended. A covenant leaves no doubt about the legal nature of

the provisions it contains, whereas a declaration is often deemed to

enunciate moral rules only. Moreover, the vinculum juris created by a

covenant generally absent from a declaration, places a duty on the

contracting parties to bring their laws and practices into accord with

the accepted international obligations and not to introduce new laws

or practices which would be at variance with such obligations.

The Covenant on Civil and Political Rights.6

The substantive rights that are treated in the Covenant on Civil and Political

Rights are found in Articles 1, and 6 to 27.

Life, liberty and property, and equality.

The Covenant’s basic provision on the right to life in Article 6(1) and its

provision on genocide Article 6(4) and the general guarantee of liberty in Article

9( 1) do not go beyond what Article III, Section 1 of the Philippine Bill of Rights

guarantees. The Covenant, moreover, does not say when protected life begins,

whereas the Philippines protects “the life of the unborn from conception.”7

Significantly, too, there is no provision on the right to property in the

Covenant, this in spite of the fact that a provision exists in Article 17(1) in the

Universal Declaration. Pechota explains the absence from the Covenant thus:

“While no one in the Commission questioned the right itself, there were

considerable differences of opinion as to the restrictions to which it should be

subject. At a time when property rights had lost much of their previous sanctity, it

was inevitable that the

Id. at 35.

6Adopted December 16,1966; entered into force March 23,1976.

’Supra,note 27 at 44.

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INTERNATIONAL HUMAN RIGHTS LAW

253

Commission would find it difficult to draft a text that would command general

acceptance.”

On the right to life, the Covenant’s Article 6(2) expresses a bias for the

abolition of the death penalty and allows its imposition, in countries which still

have a death penalty, only after conviction for the most serious crimes. But the

Covenant does not stop there. In Article 6(6) it says: “Nothing in this article shall

be invoked to delay or to prevent the abolition of capital punishment by any State

Party to the present Covenant.” In fact, in the Second Optional Protocol to the

Covenant, which was signed at the General Assembly meeting on December 15,

1989, but which has not yet come into force, Article 1 says: “(1) No one within the

jurisdiction of a State Party to the present Protocol shall be executed. (2) Each

State Party shall take all necessary measures to abolish the death penalty within its

jurisdiction.”

The Philippines is not yet party to the Second Protocol although it signed on

September 20,2006. The 1987 Constitution prohibited the imposition of the death

penalty unless a new law is passed imposing death for “heinous crimes.”8

Congress first restored the death penalty for heinous crimes but Republic Act No.

9346 has since disallowed it.

On the more detailed aspects of physical liberty, and arrests and detention

found in Articles 8,9 and 11 of the Covenant, these are more than adequately

covered by corresponding provisions of the Bill of Rights.9

Similarly, the rights of an accused detailed in Articles 14 and 15 of the

Covenant have long been parts of the Philippine accusatory system as found in the

Constitution.10 But the Covenant, in Article 14, is more restrictive in the matter of

publicity of criminal proceedings “where the interest of juvenile persons otherwise

requires or the proceedings concern matrimonial disputes or the guardianship of

children.” Such standards would not easily pass the Philippine tests for publicity

and free press."

8Article III, Section 19(1).

’Article III, Sections 2,12,15 and

‘“Article III, Sections 14 to 17.

"Article III, Section 4.

254 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

There are, however, two provisions on compensation in the Covenant which

should be looked into. Article 9(5) says: “Anyone who has been a victim of

unlawful arrest or detention shall have an enforceable right to compensation,” and

Article 14(6) says that a person who has been a victim of miscarriage of justice

“shall be compensated according to law, unless it is proved that the non-disclosure

of the unknown fact in time is wholly or partly attributable to him.” The only

place where the Philippine Constitution asks for compensation is in Section 12(4)

of the Bill of Rights where the legislature is asked to compensate violations of

rights of a person under investigation.

The guarantee of equality is found in Article 26 of the Covenant. It is the

Bill of Rights’ more terse “equal protection” clause in Article III, Section 1. The

guarantee is of legal equality. It does not embody the aspiration towards lesser

material inequality. The latter is material found in the Covenant on Economic,

Social and Cultural Rights.

Torture, ill-treatment and prison conditions

The Covenant’s proscription of torture and other forms of ill- treatment that

offend not only against bodily integrity but also against personal dignity and the

requirement of humane prison conditions are found in Articles 7 and 10.

While adequate prison conditions are guaranteed by Section 19(2) of the

Bill of Rights, the fact, however, is that prison conditions in the Philippines today

are far from adequate. It should be noted that the UN Human Rights Commission

has expressed the view that imprisonment “in conditions seriously detrimental to a

prisoner’s health” constitutes violation of Articles 7 and 10(1) of the Covenant.12

Freedom of Movement

The Covenant in its Article 12(1) and (2) group together the rights to travel

within the country, the right to leave the country and the right to change one’s

residence. The limitations on these three rights are enumerated in Article 12(3):

“those which are provided by law, are necessary to protect national security,

public order (ordre public), public

l2Ambrosini, et al. v. Uruguay, (R. 1/15) HRC 34, 124, cited in P. Sieghart, THE INTERNATIONAL LAW OF HUMAN

RIGHTS 171 (1983).

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255

health or morals or the rights and freedoms of others, and are consistent with the

other rights in the present Covenant.” They are similar to the limitations found in

the Philippine Bill of Rights except for the fact that, unlike the Philippine

provision, it does not require a court order for impairment of liberty of abode.

Unlike the Philippine provision, which speaks only of the right to travel

without distinction as to whether it is travel within the country or travel from or to

the country, the Covenant in Article 12(4) separates the right to return to one’s

country from the right to leave one’s country. The limit to the right to return to

one’s country in the Covenant is implied in the word “arbitrarily:” “No one shall

be arbitrarily deprived of the right to enter his own country.” The intention of the

Covenant in separating this right would seem to be to make the limitation more

narrow than for the right to leave the country especially since exile is now

prohibited by customary law and the prohibition of exile may even be jus cogens.

It is also noteworthy that the Inter-American Commission of Human Rights has

expressed the opinion that domestic laws which prevent exiled individuals from

returning to their country run counter to Article 12 of the Covenant.'3

The Philippine Supreme Court, however, in the case on the return of

Ferdinand Marcos after his involuntary exile, arrived at a different conclusion. The

Court argued that since the Declaration of Human Rights and the Covenant on

Human Rights separate the right to leave the country from the right to return to

one’s country, the two rights are distinct and the right to return to one’s country is

not guaranteed by the specific guarantees for the right to travel and liberty of

abode and that therefore President Marcos could not appeal to Section 6 of the Bill

of Rights. The vote, however, was a reluctant and embarrassed 8 to 7, and the

decision was prefaced thus: “This case is unique. It should not create a precedent,

for the case of a dictator forced out of office and into exile after causing twenty

years of political, economic and social havoc in the country and who within the

short space of three years seeks to return, is in a class by itself.”14

Paul Sieghart, THE INTERNATIONAL LAW OF HUMAN RIGHTS 184-185 (1983).

l4Marcos v. Manglapus,et al.,G.R. No. 88211, September 15,1989. Justice Cortes said that “the right to

return to one’s country, a totally distinct right under international law, independent from although related to the

right to travel” was “not among the rights specifically guaranteed in the Bill of Rights.” Human rights

advocates would normally appeal to the Universal Declaration

256 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Related to freedom of movement is the right of aliens not to be expelled

without due process from a territory. This is guaranteed in Article 13 of the

Covenant.

Legal personality, privacy and the family

The right to be recognized as a person before the law is guaranteed in

Article 16 of the Covenant. One must distinguish, however, between “having a

legal personality” and “having a capacity to act.” The first belongs to all, whether

citizens or aliens; the second may not be available to some by reason, for instance

of infancy, minority, or insanity. The guarantee in its fullness means that state

parties must “treat every human being everywhere, male or female, young or old,

alien or citizen, as a person before the law, enjoying the protection of the law and

of the forces of the law, with power to have rights and assume obligations: to own,

acquire, and dispose of property; to make contracts; to sue and be sued; and to

invoke other legal remedies.”15 There is no similar specific guarantee in the

Constitution; but that it is presumed to exist runs through the entire document.

But when does one become a person? The Covenant does not say. The

Philippine Constitution protects “the life of the unborn from conception;”16 but it

does not say that the unborn is a person. The Civil Code, however, says that for

purposes beneficial to him the unborn is considered a person.

Article 17 of the Covenant protects “privacy, family, home or

correspondence” as well as honour and reputation.”

Articles 23 and 24 of the Covenant contain detailed provisions on the rights

of the family and of children. These either are covered by Article XV on the

Family in the Constitution or are so fundamental that Philippine law takes them

for granted.

of Human Rights and to the International Covenant on Civil and Political Rights in order to seek additional

support for the protection given by a specific country’s constitution. Justice Cortes does the opposite. She uses

the Declaration and the Covenant to weaken the Philippine Bill of Rights.

’’Fernando Volio, “LEGAL PERSONALITY, PRIVACY, AND THE FAMILY" in HENKIN, supra, note

4, at 187-188.

'‘Article II, Section 12.

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257

Thought, conscience, religion, expression and political freedoms

Article 18 of the Covenant guarantees “freedom of thought, conscience, and

religion.” The limits on external exercise found in the Covenant — “to protect

public safety, order, health, or morals or the fundamental rights of others” — if

interpreted broadly can dilute the freedom and thus come into conflict with the

very narrow limits allowed by the preferred position which free exercise occupies

in the Bill of Rights. The Covenant contains explicit protection of the right of

parents in the matter of religion for their children.

Notably, however, an established religion is not incompatible with the

Covenant.

Article 19 of the Covenant guarantees freedom of expression and Article 21

protects the right of assembly and petition. They do not go beyond our

Constitution’s own guarantees on the same subject. However, the Covenant’s

Article 20 which prohibits “propaganda for war” can come into conflict with our

Constitution’s freedom of expression.

The guarantee of political freedom in the Covenant’s Article 25 is also

written all over the Philippine Constitution.

Associations and unions

Article 22 of the Covenant has a detailed set of provisions protecting the

right to form associations and unions. The Covenant is silent about the right of

government employees to form unions; the Constitution is explicit in the assertion

of the right.

Minorities

Article 27 guarantees “ethnic, religious or linguistic minorities” the right “to

enjoy their own culture, to profess and practice their own religion, or to use their

own language.” This is one of the few rights which was already the subject of

earlier treaties such as the Treaty of Versailles of 1919 and the Polish-German

Upper Silesia Treaty of 1922.17 It is a right which is very central to the current

conflicts in Eastern Europe.

'’Sieohart, supra, note 14, at 377.

258 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The concern for minorities has a two-fold aspect. The first is the fear of “a

secessionist movement by minorities, threatening territorial integrity of the state,

or about the danger of interference by other states with which the minorities are

connected by ties of race, national origin, language, or religion.” The second is a

genuine “concern for the human rights of minorities” and the desire “that

minorities will flourish so as to preserve that diversity of the human race, which,

since the beginning of mankind, has provided a motive power for the development

of civilization and culture by weaving many strands into a single multi-colored

tapestry.”18

Self-determination of peoples

Related to but broader than the right of minorities is the right of selfdetermination of peoples. This is treated in Article 1 of the Covenant. It has an

interesting history and is of continuing relevance to dramatic developments that

have happened within the past decade.

The proposal made by the USSR on the subject was to recognize the right of

self-determination of peoples under colonial domination. But others pushed for the

inclusion of self-determination “for peoples oppressed by despotic governments,

peoples under alien domination, and peoples of multi-national states deprived of

self-determination by the central authorities.”19 Article 1 now covers all of the

above.

Self-determination covers two important rights: the right “freely to

determine their political status and freely pursue their economic, social and

cultural development” and the right “for their own ends, [to] freely dispose of the

natural wealth and resources without prejudice to any obligations arising out of

international cooperation, based upon the principle of mutual benefit, and

international law.”

Since the adoption of the Covenant, there have been at least two significant

developments. On December 14, 1960, the General Assembly adopted the

Declaration on the Granting of Independence to Colonial Countries and Peoples,

and on December 14,1962, it adopted the Resolution on Permanent Sovereignty

over Natural Resources. But two questions remain: Who are “peoples” within the

meaning of the

"Louis B. Sohn, “THE RIGHTS OF MINORITIES" in L. Henkin, Ed. supra, note 4, at 270-271.

Antonio Cassese, “THE SELF-DETERMINATION OF PEOPLES" in L. Henkin, id., at 92.

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259

Covenant? And, since self-determination is now a legal right, what does the legal

right include?

Certainly “peoples” include those ruled by colonial powers; but under

present circumstances this is now of limited significance. “Peoples” also mean

those who form a component part of a multinational state.

On the other hand, minorities as such, for which the Covenant has Article

27, does not have a right of self-determination in the sense of the right to secede.

Even the penultimate article of the 1960 Declaration on the Granting of

Independence says: “Any attempt aimed at the partial or total disruption of the

national unity and territorial integrity of a country is incompatible with purposes

and principles of the Charter of the United Nations.”20

Self-determination has an internal and an external aspect. The internal right

of self determination consists of the elements enumerated in the first two

paragraphs of Article 1: the right “freely to determine their political status and

freely pursue their economic, social and cultural development” and the right, “for

their own ends, [to] freely dispose of the natural wealth and resources without

prejudice to any obligations arising out of international cooperation, based upon

the principle of mutual benefit, and international law.” These also necessarily

include the other related political rights.

The external right of self-determination belongs to colonies and to those

enumerated in the third paragraph: “non-self-governing and Trust Territories.”

Optional Protocol on the Covenant on Civil and Political Rights.

As a supplement to the Covenant on Civil and Political Rights, the United

Nations adopted the Protocol to the Covenant on December 16, 1966. The

Protocol entered into force on March 23,1976. The Philippines has ratified the

Protocol.

This separate treaty is designed to enable private parties who are victims of

human rights violations. But complaints may be filed only

”W. at 96; John P. Humphrey, "POLITICAL AND RELATED RIGHTS” in T. Meron, Ed., HUMAN RIGHTS IN

INTERNATIONAL LAW 195-196 (1985).

260 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

against states which have ratified the Protocol. An eighteen-member Human

Rights Committee created by the Covenant receives and handles the complaints.21

The Covenant on Economic, Social and Cultural Rights.22

The Covenant on Civil and Political Rights and the Covenant on Economic

and Social and Cultural Rights were adopted on the same day. But why two

separate documents?

The reasons for the division are both ideological and practical.

Ideologically, the contest was between Western countries on the one hand and

socialist and Third World countries on the other. The American delegation, for

instance, argued that its government would find difficulty in accepting a treaty

containing economic and cultural rights beyond those guaranteed by the

Constitution. For the socialist and Third World countries, on the other hand, the

absence of economic, social and cultural guarantees could render civil and

political guarantees meaningless. On the practical level, however, it became

obvious that implementing civil and political guarantees, the classical “Thou shalt

nots” of the Western tradition, could be done immediately; whereas the

implementation of economic, social and cultural rights could only be done

gradually and dependently on development conditions. In the end, the decision to

divide, which would at least assure approval of a document on civil and political

rights, prevailed. But significantly, Article 1 of both Covenants say exactly the

same thing about the right of self-determination of people. Moreover, there are

substantial overlappings on other subjects of the Covenants.

The rights specific to the Covenant on Economic, Social and Cultural

Rights are social welfare rights stated in detail. They include: the right to work

(Article 6), to favorable conditions of work (Article 7),

2lFor a discussion of the Protocol, the United Nations 1503 Procedure and other related implementing

instruments, see Dinah L. Shelton, “Individual Complaint Machinery under the United Nations 1503 Procedure

and the Optional Protocol to the International Covenant on Civil and Political Rights” in H. Hannum ed., GUIDE TO

INTERNATIONAL HUMAN RIGHTS PRACTICE (1984) 59- 73; Louis B. Sohn , “HUMAN RIGHTS: THEIR IMPLEMENTATION AND SUPERVISION BY THE

UNITED NATIONS ” in T. meron, supra, note 60 at 369-394; A.H. Robertson, “THE IMPLEMENTATION SYSTEM: INTERNATIONAL MEASURES”

in L. Henkin, supra, note 27, at 3322-370. Adopted December 16, 1966; entered into force January 1976.

“Adopted December 16, 1966; entered into force January 1976.4 Pechota, supra, note 27, at 41-43;

David M. Trubek, “Economic, Social, and Cultural Rights in the Third World” in T. MERON, Ed., supra, note

22, at 210-212.

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261

to form free trade unions (Articles 8), to social security and insurance (Article 9),

to special assistance for families (Article 10), to adequate standard of living

(Article 11), to the highest standard of physical and mental health (Article 12), to

education including compulsory primary education (Articles 13 and 14), and to

the enjoyment of cultural and scientific benefits and international contacts (Article

15).

These correspond to the economic, social and cultural rights that are also

found in the Constitution, principally Article XIII (Social Justice), Article XIV

(Education, Science and Technology, Arts, Culture, and Sports), and Article XV

(The Family).

The Duty to Implement.

The Philippines is a party not only to the United Nations Charter and the

Universal Declaration of Human Rights but also to the two Covenants as well as

to the Optional Protocol to the Covenant on Civil and Political Rights. The nation

is therefore bound, both internally and in its foreign relations, “to bring [its] laws

and practices into accord with the accepted international obligations and not to

introduce new laws or practices which would be at variance with such

obligations.” As Article 2 of the Covenant on Civil and Political Rights says:

1. Each State Party to this present Covenant undertakes to respect

and to ensure to all individuals within its territory and subject to its

jurisdiction the rights recognized in the present Covenant, without

distinction of any kind, such as race, colour, sex, language, religious,

political or other opinion, national or social origin, property, birth or other

status.

2. Where not already provided for by existing legislative or other

measure, each State Party to the present Covenant undertakes to take the

necessary steps, in accordance with its constitutional processes and with the

provisions of the present Covenant, to adopt such legislative or other

measures as may be necessary to give effect recognized in the present

Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as

herein recognized are violated shall have an effective remedy,

notwithstanding that the violation has been committed by any person

acting in an official capacity;

262 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

(b) To ensure that any person claiming such a remedy shall

have his right thereto determined by competent judicial,

administrative or legislative authorities, or by any other competent

authority provided for by the legal system of the State, and to

develop the possibilities of judicial remedy;

such remedies when granted.

As already noted, treaty commitments become part of domestic law. The

self-executing provisions of the Covenants therefore must be implemented in

domestic law. Those which are not self-executing must be attended to by

“necessary steps, in accordance with its constitutional processes and with the

provisions of the present Covenant.” This may be either by legislative or by

executive measures.

The implementation of the provisions of the Covenant on Economic, Social

and Cultural rights follows a pattern of its own. Article 2 says in part:

1. Each State Party to the present Covenant undertakes to take

steps, individually and through international assistance and cooperation,

especially economic and technical, to the maximum of its available

resources, with a view to achieving progressively the full realization of the

rights recognized in the present Covenant by all appropriate means,

including particularly the adoption of legislative measures.

What governs therefore is the principle of “progressive realization” which

means “that a state is obligated to undertake a program of activities . . . and to

realize those rights which are ‘recognized’ by the Economic Covenant. While the

obligation of progressive realization is limited by resource constraints, the

Economic Covenant indicates that priority should be given to social welfare and

that the level of effort should increase over time. These obligations apply to any

state that has ratified the Economic Covenant, regardless of that state’s economic

resources.”

Beyond the domestic obligations, however, and more relevantly for this

essay, is the international obligation. In the economic and social fields, the key

words are “cooperation” and “assistance.” “The effort to provide international

protection for economic/social rights on the global level proceeds along many

lines and involves actions of various kinds

CHAPTER 12

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263

on behalf of these rights. The framework for this effort is the United Nations

system, with its central organization, loosely coordinated network of specialized

agencies, and growing body of covenants and conventions relevant to this area of

human experience.”23 In the civil and political field, this involves participation in

the implementation measures of the United Nations system.24

Other Conventions on Human Rights.

There have been other conventions intended for the protection of human

rights. Among these are the 1948 Genocide Convention, the 1966 Convention on

the Elimination of All Forms of Racial Discrimination, the 1979 Convention on

the Elimination of All Forms of Discrimination Against Women, the 1984

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment, the 1989 Convention on the Rights of the Child, and the 1990

Convention on Migrants Workers.

The different regional conventions on human rights have their own

procedure for implementation.

Customary human rights law.

It can also be said that some human rights principles have become

customary law in the light of state practice. This would include the prohibition of

torture, genocide, slavery and the prohibition of discrimination.

International Implementation of Human Rights Law.

Each country has the obligation to implement human rights law within its

jurisdiction. It can be done, where proper, through municipal courts such as what

happened in the Pena Irala case. There now exist also regional courts with

jurisdiction over human rights violations. In addition to these, the United Nations

itself has a system for implementation.

An important UN body is the Human Rights Commission, a subsidiary

organ of ECOSOC. There are two different procedures used

23AGLEN MOWER, JR., International Cooperation for Social Justice 7 (1985).

24See Pedro Roman Ariston, “TAKING THE MOST SERIOUS CRIMES OF INTERNATIONAL CONCERN SERIOUSLY, ” Unpublished Juris Doctor

Thesis presented to the Ateneo de Manila Law School, 2002.

264 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

by the Commission for responding to violations of human rights. These are (1)

confidential consideration under ECOSOC Resolution 1503 and (2) public debate

procedure under ECOSOC Resolution 1235. Both of these may be supplemented

by the designation of a “thematic rapporteur” or Working Group to study

violations of a specific character, e.g., torture, disappearance or arbitrary

detention. There is overlapping between the two procedures.

The 1503 Procedure or confidential procedure

Resolution 1503 authorizes the Sub-Commission on Prevention of

Discrimination and Protection of Minorities to appoint a working group consisting

of not more than five members to meet once a year in private meetings to consider

all communications, including replies of the governments concerned, with a view

to bringing to the attention of the Sub-Commission those communications which

appear to reveal a pattern of gross and reliably attested violations of human rights.

The confidential findings of the Sub-Commission are brought to the attention of

the Commission on Human rights. The Commission on Human Rights in turn is

expected to submit its report and recommendation to the Economic and Social

Council. The procedure is kept confidential until such time as the Commission on

Human Rights decides to make recommendation to the ECOSOC.

Although the procedure is kept confidential, findings invariably find their

way into media. Reports have touched such countries as Uruguay, Argentina, the

Philippines and other countries.

The 1235 Procedure

This Commission on Human Rights was established in 1946 as a subsidiary

organ of ECOSOC. For its first twenty years, it took the view that it had no

authority to take any action with regard to reported violations of human rights. A

significant change took place in 1967 through ECOSOC Resolution 1235,

antedating Resolution 1503. The Resolution authorized the Commission and its

Subsidiary Commission on Prevention of Discrimination and Protection of

Minorities to examine reports relevant to gross violations of human rights and to

examine whether the violations revealed a consistent pattern and thereafter make

recommendations to ECOSOC. Originally, the function referred to situation in

South Africa, but it soon included situations in Chile, Afghanistan, Cuba, El

Salvador, Guatemala, Iran and Iraq.

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265

As the procedure now operates, it carries out two types of activities. First, it

holds annual public debates in which governments and NGOs are given the

opportunity to identify publicly country specific situations which deserve

attention. This is thus different from the confidential process under 1503. In fact,

subjects taken up under 1503 can find their way to 1235. Second, it engages in

studies and investigations of particular situations through the use of various

techniques the Commission might deem appropriate.

What can result from these procedures? Various things can follow:

embarrassment of countries referred that might generate change in policy; pressure

on governments to take the issue on a bilateral or multilateral level; statements of

exhortation from the Commission or call from the Commission for all available

information; the Commission might appoint a Special Rapporteur to examine and

submit a report on the issue; the Commission might ask the Security Council to

take up the issue with a view to promulgating sanctions.

Aside from the procedures under Resolutions 1503 and 1235, there are other

specialized agencies which attend to specific human rights problems.

The International Criminal Court.23

A significant development in the protection of human rights is the

International Criminal Court created by the 1998 Rome Statute. The treaty came

into force in April 2002 when the 60th country needed to establish the

International Criminal Court submitted its ratification. However, although nearly

all the world’s democracy support the court, the United States continues to refuse

ratification. Nor has the Philippine government ratified the Rome Treaty as of this

writing.

What is the significance of the establishment of the International Criminal

Court? Hitherto, international crimes were prosecuted in ad hoc criminal courts.

Such were the Nuremberg and the Tokyo tribunals after World War II, and more

recently, the tribunals for Rwanda and the former Yugoslavia. These earlier

tribunals were undermined and weakened by the charges of politically motivated

investigations and

See A. H. Robertson, “THE IMPLEMENTATION SYSTEM: INTERNATIONAL MEASURES” in L. HENKIN, supra, note 4, at 332-

369.

266 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

selective justice. Unlike the temporary tribunals, the new court will has been

established without any specific country in mind. Thus, besides enjoying

permanency, it will begin with the virtue of neutrality so necessary for fairness.

Gradually too, the court will be able to establish precedents.

The goal of the court, moreover, is to demand individual and not collective

accountability. It will therefore shift the stigma of guilt away from the collectivity

and will thereby help facilitate reconciliation by avoiding condemnation of entire

societies. For these and other reasons some have considered its establishment “the

single most important international institutional advance since the founding of the

United Nations more than a half century ago.”

How will the court work? It will not function as an all purpose court. Its

jurisdiction will be limited to the most serious international crimes: genocide,

crimes against humanity, war crimes, and the crime of aggression. These crimes

are carefully defined in the treaty.

An important feature of the court is the principle of complementarity. The

court is meant to be a court of last resort. It normally must await referral of a crime

either by a state party or by the Security Council. The court is not allowed to act

when the local judicial system is able and willing to prosecute. Once a state has

taken the initiative to investigate a crime, even if it ultimately decides that there is

no reason to proceed, the international court cannot intervene. The international

court is not intended to supplant the functioning of military and civilian tribunals

in national judicial systems. However, if a state intentionally tries to avoid its

international obligation by shielding a criminal from responsibility, the court may

come in.

As can be seen, because of the principle of complementarity, the effective

functioning of the court will depend very much on the cooperation of state parties.

The domestic criminalization of the acts enumerated as serious crimes in the treaty

will still have to be made by the state. In our jurisdiction, customary international

law becomes domestic law by incorporation. Incorportion is achieved either

through the constitutional provision which says that the general principles of

international law are part of the law of the land or by treaty ratification. However,

there is persuasive authority saying that treaties which criminalize certain acts are

not self-executing.

Chapter 13

PEACEFUL SETTLEMENT OF INTERNATIONAL

DISPUTES

The meaning of international “dispute.”

Not every disagreement is a “dispute.” A dispute in international law is a

technical term which means “a disagreement on a point of law or fact, a conflict of

legal views or interests between two persons.” A disagreement does not amount to

a dispute if its resolution would have no practical effect on the relationship

between the parties. Examples of a dispute are: disagreements over the

interpretation of a treaty or about state boundaries or about state responsibility.

Article 2, paragraph 3 of the UN. Charter says: “All members shall settle

their international disputes by peaceful means in such a manner that international

peace and security, and justice, are not endangered.”

There is no general obligation to settle disputes, except perhaps those which

according to Article 33, might endanger peace and security. But if a decision is

made to settle disputes, the obligation is to settle them by peaceful means.

Peaceful methods of settling disputes.

The key provisions in the UN Charter are the following:

Article 33.

1. The parties to any dispute, the continuance of which is

likely to endanger the maintenance of international peace and

security, shall, first of all, seek a solution by negotiation, enquiry,

mediation, conciliation, arbitration, judicial settlement, resort to

regional agencies or arrangements, or other peaceful means of their

own choice.

2. The Security Council shall, when it deems necessary, call

upon the parties to settle their dispute by such means.

267

268 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Article 36

1. The Security Council may, at any stage of a dispute of

the nature referred to in Article 33 or of a situation of like nature,

recommend appropriate procedures or methods of adjustment.

2. The Security Council should take into consideration any

procedures for the settlement of the dispute which have already been

adopted by the parties.

3. In making recommendations under this Article the

Security Council should also take into consideration that legal

disputes should as a general rule be referred by the parties to the

International Court of Justice in accordance with the provisions of the

Statute of the Court.

Article 37

1. Should the parties to a dispute of the nature referred to in

Article 33 fail to settle it by the means indicated in that Article, they

shall refer it to the Security Council.

2. If the Security Council deems that the continuance of the

dispute is in fact likely to endanger the maintenance of international

peace and security, it shall decide whether to take action under Article

36 or to recommend such terms of settlement as it may consider

appropriate.

Article 38

Without prejudice to the provisions of Articles 33 to 37, the

Security Council may, if all the parties to any dispute so request,

make recommendations to the parties with a view to a pacific

settlement of the dispute.

The peaceful means of settling disputes mentioned in the Charter may be

classified into: (a) non-judicial methods [negotiation, enquiry, mediation,

conciliation]; (b) quasi-judicial method [arbitration]; and (c) judicial method.

Another way of classifying them is into diplomatic and judicial methods.

Non-judicial or diplomatic methods.

Negotiation

States are generally hesitant to submit their disputes to an adjudicatory

body. For this reason, negotiation is a preferred vehicle. There

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PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES

269

are no set rules for negotiation. It may take place at arm’s length or face to face.

But for a negotiated settlement to be legally binding, the parties must agree to it.

The agreement to negotiate may be formalized in a treaty or in a simple exchange

of notes.

A preliminary step to negotiation might be “good offices" when a neutral

third party tries to bring two disputants together. Having been brought together,

the usual first step, often required before judicial settlement, is negotiation. It may

be carried out by diplomatic correspondence, face-to-face dialogue between

permanent envoys or by designated negotiators. Essentially, negotiation is a giveand-take process of looking for a win-win solution.

Mediation

Mediation involves assistance by third parties who either act as bridge

between parties, who do not meet, or who may sit with the disputants to chair

meetings, suggest solutions, cajole, etc. The mediator must be approved by both

parties.

Inquiry

Inquiry is fact-finding done by a designated group of individuals or an

institution. When undertaken with the consent of the parties, it frequently resolves

disputes based solely on questions of fact.

Conciliation

Conciliation is a more formal technique whereby the parties agree to refer

controversies to an individual, a group of individuals or an institution to make

findings of fact and recommendations. As a rule, parties do not agree to be bound

by recommendations. But this clears the air.

Quasi-judicial method.

Arbitration

Arbitration is the binding settlement of a dispute on the basis of law by a

non-permanent body designated by the parties. The composition, the jurisdiction

and the rules of procedure to be applied are agreed upon by the parties in a

compromis d’arbitrage. States cannot be required to submit to arbitration unless

there is a previous agreement making arbitration compulsory.

270 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

What mainly distinguishes arbitration from judicial settlement is that parties

have a greater say in deciding, for instance, the law to be applied and the

composition of the arbitral tribunal. The process thereby becomes more flexible.

There are at least three types of arbitral agreements. The first is an

arbitration clause that is incorporated as part of a treaty. This is commonly found

in commercial treaties. The second type of agreement are treaties whose sole

function is to establish methods for the arbitration of disputes. E.g., The Hague

Convention for the Pacific Settlement of Disputes. The third type are ad-hoc

arbitral agreements. E.g., the agreement for the settlement of claims between the

US and Iran (1981).

Arbitral awards have made significant contribution to the development of

international law. For instance, the arbitral award in the Las Palmas case

established an important precedent involving acquisition of territory and decisions

of the US-Mexican Claims Commission clarified various points on state

responsibility.

Arbitral decisions

Arbitral tribunals apply international law unless the parties specify that

some other law should be applied.

Under certain circumstances, arbitral decisions may be challenged. The four

most commonly accepted bases are: that the arbitral body exceeded its powers;

that there was corruption on the part of a member of the body; that there was

failure to state the reasons for the awards or a serious departure from a

fundamental rule of procedure; that the undertaking to arbitrate or the compromis

is a nullity.

Domestic courts, however, may refuse to give recognition to awards given

by foreign arbitral tribunals under grounds found in the Convention on the

Recognition and Enforcement of Foreign Arbitral Awards which says:

(1) a court in a state party to the Convention may deny

recognition or enforcement to a foreign arbitral award if:

(a) the agreement to arbitrate was not valid under applicable

law;

(b) the party against which the award was rendered did not

receive proper notice of the proceedings or was otherwise not

afforded an opportunity to present its case;

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271

agreement to arbitrate;

(d) the constitution of the arbitral tribunal or the arbitral

procedure was contrary to the agreement of the parties or to the law of

the state where the arbitration took place; or

(e) the award has not yet become binding on the parties, or

has been suspended or set aside by a competent court in the state

where it was made.

(2) A court of a state party to the Convention may also deny

recognition or enforcement to a foreign arbitral award that meets the

requirements of § 487 if, under the law of that state:

(a) the subject matter of the controversy is not capable of

settlement by arbitration; or

(b) recognition or enforcement would be contrary to public

policy. (§488, Third Restatement.)

Judicial method: the International Court of Justice (ICJ).

The UN’s principal judicial organ is the International Court of Justice. It is

the successor to the Permanent Court of International Justice established by the

League of Nations. It came into being in 1945 through the Statute of the Court. All

members of the UN are ipso facto parties to the Statute of the International Court

of Justice. Being party to the Statute, however, does not mean acceptance of the

jurisdiction of the Court. It simply means that the state may accept the jurisdiction

of the court. The Statute opens the court’s door to member states. Only states may

be parties in the court.

The cardinal rule in international courts is that states cannot be compelled to

submit disputes to international adjudication unless they have consented to it

either before a dispute has arisen or thereafter. States are also free to limit their

acceptance to certain types of disputes and to attach various conditions or

reservations to their acceptance.

Composition of the Court.

Article 2.

The Court shall be composed of a body of independent judges, elected regardless of

their nationality from among persons

272 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

of high moral character, who possess the qualifications required in

their respective countries for appointment to the highest judicial

offices, or are jurisconsults of recognized competence in international

law.

Article 3.

1. The Court shall consist of fifteen members, no two of

whom may be nationals of the same state.

2. A person who for the purposes of membership in the Court

could be regarded as a national of more than one state shall be

deemed to be a national of the one in which he ordinarily exercises

civil and political rights.

Article 26.

1. The Court may from time to time form one or more

chambers, composed of three or more judges as the Court may

determine, for dealing with particular categories of cases; for

example, labour cases and cases relating to transit and

communications.

2. The Court may at any time form a chamber for dealing

with a particular case. The number of judges to constitute such a

chamber shall be determined by the Court with the approval of the

parties.

3. Cases shall be heard and determined by the chambers

provided for in this article if the parties so request.

Article 27.

A judgment given by any of the chambers provided for in

Articles 26 and 29 shall be considered as rendered by the Court.

Article 31.

1. Judges of the nationality of each of the parties shall retain

their right to sit in the case before the Court.

2. If the Court includes upon the Bench a judge of the

nationality of one of the parties, any other party may choose a person

to sit as judge. Such person shall be chosen preferably from among

those persons who have been nominated as candidates as provided in

Articles 4 and 5.

3. If the Court includes upon the Bench no judge of the

nationality of the parties, each of these parties may proceed to choose

a judge as provided in paragraph 2 of this Article.

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273

4. The provisions of this Article shall apply to the case of

Articles 26 and 29. In such cases, the President shall request one or, if

necessary, two of the members of the Court forming the chamber to

give place to the members of the Court of the nationality of the parties

concerned, and, failing such, or if they are unable to be present, to the

judges specially chosen by the parties.

5. Should there be several parties in the same interest, they

shall, for the purpose of the preceding provisions, be reckoned as one

party only. Any doubt upon this point shall be settled by the decision

of the Court.

6. Judges chosen as laid down in paragraphs 2, 3, and 4 of

this Article shall fulfill the conditions required by Articles 2,

17 (paragraph 2), 20, and 24 of the present Statute. They shall take

part in the decision on terms of complete equality with their

colleagues.

Jurisdiction of the ICJ: Contentious jurisdiction.

The Court exercises two types of jurisdiction: contentious jurisdiction and

advisory jurisdiction. The principal rules on contentious jurisdiction are the

following:

Article 36.

1. The jurisdiction of the Court comprises all cases which

the parties refer to it and all matters specially provided for in the

Charter of the United Nations or in treaties and conventions in force.

2. The states parties to the present Statute may at any time

declare that they recognize as compulsory ipso facto and without

special agreement, in relation to any other state accepting the same

obligation, the jurisdiction of the Court in all legal disputes

concerning:

a. the interpretation of a treaty;

b. any question of international law;

c. the existence of any fact which, if established,

would constitute a breach of an international obligation;

d. the nature or extent of the reparation to be made

for the breach of an international obligation.

3. The declarations referred to above may be made

unconditionally or on condition of reciprocity on the part of several or

certain states, or for a certain time.

274 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

4. Such declarations shall be deposited with the SecretaryGeneral of the United Nations, who shall transmit copies thereof to the

parties to the Statute and to the Registrar of the Court.

5. Declarations made under Article 36 of the Statute of the

Permanent Court of International Justice and which are still in force shall

be deemed, as between the parties to the present Statute, to be acceptances

of the compulsory jurisdiction of the International Court of Justice for the

period which they still have to run and in accordance with their terms.

6. In the event of a dispute as to whether the Court has

jurisdiction, the matter shall be settled by the decision of the Court.

From Article 36, the following should be noted: jurisdiction of the ICJ is

applicable only to disputes between states and disputes are settled by international

law and not by domestic law. But the Court has jurisdiction only when a case is

referred to it by the parties.

There are three ways through which states may accept jurisdiction of the

court. The first comes about on an ad hoc basis. This can happen when one party

applies unilaterally to the Court and this application is followed by consent by the

other state. A second way is when parties adhere to a treaty which accepts the

jurisdiction of the court on matters of interpretation or application of the treaty.

Finally, acceptance of jurisdiction can take place by a unilateral declaration that

recognition of jurisdiction in relation to any other state accepting the same

jurisdiction in all legal disputes. This last creates the optional system of submitting

to the jurisdiction of the Court.

The optional system is operative only for states that “at any time declare that

they recognize as compulsory ipso facto and without special agreement, in relation

to any other state accepting the same obligation, the jurisdiction of the Court in all

legal disputes concerning: a. the interpretation of a treaty; b. any question of

international law; c. the existence of any fact which, if established, would

constitute a breach of an international obligation; d. the nature or extent of the

reparation to be made for the breach of an international obligation.” The

Declaration is deposited with the Secretary General.

The Declaration in the optional system “may be made unconditionally or on

condition of reciprocity on the part of several or certain states, or for a certain

time.” States therefore can limit the extent to which they are subjecting themselves

to the jurisdiction of

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the court. The significance of reciprocity in the matter of limitations was

enunciated by the Court in Interhandel Case:' “Reciprocity in the case of

Declarations accepting the compulsory jurisdiction of the Court enables a Party to

invoke a reservation to that acceptance which it has not expressed in its own

Declaration but which the other Party has expressed in its Declaration.” Thus, if a

party that has made a Declaration unconditionally is brought to court by another

that has made a Declaration with conditions, the former can invoke the conditions

in the latter’s Declaration.

The following are three cases illustrate the optional system.

AERIAL INCIDENCE CASE U.S. v. Bulgaria, ICJ 1959

The U.S. acceded to the optional clause, thereby accepting the

compulsory jurisdiction of the ICJ, in August 1946. During the

ratification process for that accession, however, Senator Connally

added a critical phrase to a U.S. reservation including “disputes with

regard to matters which are essentially within the domestic

jurisdiction of the United States of America as determined by the

United States of America.”

On July 27, 1955, an El Al Israel airliner was driven off course

by strong winds in very bad weather. The plane innocently crossed

over into Bulgarian air space. While trying to return to its authorized

course, the plane was shot down by Bulgarian military fighter planes.

All fifty-one passengers and seven crew members aboard were killed,

including six American nationals.

Investigators argued that the Bulgarian military failed to take

actions required by international civil aviation agreements involving

appropriate interception and identification of intruding aircraft.

The case was first brought to the ICJ by Israel. In that famous

case — the Aerial Incident of July 27,1955 (Israel v. Bulgaria, 1959

I. CJ. Rep. 127) — the Court ruled that it did not have

jurisdiction on the grounds that Bulgaria’s acceptance of the optional

clause in the Statute of the Permanent Court of International Justice

(the PCU, precursor to the ICJ) did not carry over to acceptance of the

optional clause for the ICJ when Bulgaria joined the UN in

'Switzerland v. U.S., (1959) ICJ Rep.

276 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

December 1955, since Bulgaria had not been an original party to the

UN Charter and the Statute of the ICJ.

The United States, however, pressed ahead with its claim.

On October 24, 1957, the U.S. applied to the ICJ for action

against Bulgaria based on the violations of international law and the

injuries to U.S. nationals. The U.S. asked Bulgaria for an award of

$257,875 in damages, plus interest.

Bulgaria then went on to make four objections.

Objection Two: Reciprocal invocation of the Connally

Amendment.

On the grounds of reciprocity and the consensual basis of ICJ

jurisdiction, Bulgaria invoked the Connally Amendment reservation

exempting from ICJ jurisdiction matters within its internal

competence. Bulgaria contended that its airspace security and antiaircraft defenses were within its domestic jurisdiction. The Bulgarian

government argued further that it “cannot admit that matters which it

rightfully determines as being essentially within its domestic

jurisdiction should be considered, directly or indirectly, before the

Court. It requests, accordingly, that the Court declare itself without

competence to adjudicate upon the application of the Government of

the United States.”

The United States withdrew its application from the Court’s

consideration. On May 30,1960, just one day before oral hearings

were to begin, the Court formally accepted that withdrawal, ending

the dispute.

NICARAGUA V. US

ICJ 1984

[The United States, made a Declaration in April 1984 limiting

its Optional Clause Declaration and claimed thereby that the Court

had no jurisdiction.]

On 14 August 1946, the United States made an Optional

Clause Declaration with a reservation which said that:

“this declaration shall remain in force for a period of five

years and thereafter until the expiration of six months after

notice may be given to terminate this declaration.”

On 6 April 1984, when it became clear that its dispute with

Nicaragua would be placed before the Court, the Government

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277

of the United States deposited with the Secretary-General of the

United Nations a notification signed by the Secretary of State, Mr.

George Shultz (hereinafter referred to as “the 1984 notification”),

referring to the declaration of 1946, and stating that:

“the aforesaid declaration shall not apply to disputes with any

Central American State or arising out of or related to events in

Central America, any of which disputes shall be settled in such

manner as the parties to them may agree.

“Notwithstanding the terms of the aforesaid declaration,

this proviso shall take effect immediately and shall remain in

force for two years, so as to foster the continuing regional

dispute settlement process which seeks a negotiated solution to

the interrelated political, economic and security problems of

Central America.”

In order to be able to rely upon the United States declaration of

1946 to found jurisdiction in the present case, Nicaragua has to show

that it was a “State accepting the same obligation” as the United

States within the meaning of Article 36, paragraph 2, of the Statute.

The Court found Nicaragua that it was a state accepting the same

obligation but on the basis of a declaration it made under the Statute

of the Permanent Court of International Justice. [Arguments towards

this conclusion omitted.]

Finding: the Court therefore finds that the Nicaraguan

declaration of 1929 is valid and that Nicaragua accordingly was, for

the purposes of Article 36, paragraph 2, of the Statute of the Court, a

“State accepting the same obligation” as the United States at the date

of filing of the Application and could therefore rely on the United

States declaration of 1946.

B. The declaration of the United States (paras. 52-76)

The notification of 1984 (Paras. 52-66)

The acceptance of the jurisdiction of the Court by the United

States on which Nicaragua relies is the result of the United States

declaration of 14 August 1946. However, the United States argues

that effect should be given to the letter sent to the Secretary- General

of the United Nations on 6 April 1984 (see p. 4 above). It is clear that

if this notification were valid as against Nicaragua at the date of filing

of the Application, the Court would not have jurisdiction under

Article 36 of the Statute. After outlining the

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

arguments of the Parties in this connection, the Court points out that the

most important question relating to the effect of the 1984 notification is

whether the United States was free to disregard the six months’ notice

clause which, freely and by its own choice, it has appended to its

declaration, in spite of the obligation it has entered into vis-a-vis other

States which have made such a declaration. The Court notes that the United

States has argued that the Nicaraguan declaration, being of undefined

duration, is liable to immediate termination, and that Nicaragua has not

accepted “the same obligation” as itself and may not rely on the time-limit

proviso against it. The Court does not consider that this argument entitles

the United States validly to derogate from the time-limit proviso included in

its 1946 declaration. In the Court’s opinion, the notion of reciprocity is

concerned with the scope and substance of the commitments entered into,

including reservations, and not with the formal conditions of their creation,

duration or extinction. Reciprocity cannot be invoked in order to excuse

departure from the terms of a State’s own declaration. The United States

cannot rely on reciprocity since the Nicaraguan declaration contains no

express restriction at all. On the contrary, Nicaragua can invoke the six

months’ notice against it, not on the basis of reciprocity, but because it is an

undertaking which is an integral part of the instrument that contains it.

The 1984 notification cannot therefore override the obligation of the United

States to submit to the jurisdiction of the Court vis-a-vis Nicaragua.

CASE CONCERNING EAST TIMOR

Portugal v. Australia

ICJ 1995

(Summary)

In its Judgment the Court recalls that on 22 February 1991 Portugal

instituted proceedings against Australia concerning “certain activities of

Australia with respect to East Timor.” According to the Application

Australia had, by its conduct, “failed to observe — the obligation to respect

the duties and powers of [Portugal as] the administering Power [of East

Timor] ... and ... the right of the people of East Timor to self-determination

and the related rights.” In consequence, according to the Application,

Australia had “incurred international responsibility vis-a-vis both the

people of East Timor and Portugal.”

As the basis for the jurisdiction of the Court, the Application refers

to the declarations by which the two States have accepted

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279

the compulsory jurisdiction of the Court under Article 36, paragraph

2, of its Statute. In its Counter-Memorial, Australia raised questions

concerning the jurisdiction of the Court and the admissibility of the

Application....

The Court then gives a short description of the history of the

involvement of Portugal and Indonesia in the Territory of East Timor

and of a number of Security Council and General Assembly

resolutions concerning the question of East Timor. It further describes

the negotiations between Australia and Indonesia leading to the

Treaty of 11 December 1989, which created a “Zone of Cooperation

... in an area between the Indonesian Province of East Timor and

Northern Australia.”

The Court then summarizes the contentions of both Parties.

The Court goes on to consider Australia’s objection that there is

in reality no dispute between itself and Portugal. Australia contends

that the case as presented by Portugal is artificially limited to the

question of the lawfulness of Australia’s conduct, and that the true

respondent is Indonesia, not Australia. Australia maintains that it is

being sued in place of Indonesia. In this connection, it points out that

Portugal and Australia have accepted the compulsory jurisdiction of

the Court under Article 36, paragraph

2, of its Statute, but that Indonesia has not.

The Court finds in this respect that for the purpose of verifying

the existence of a legal dispute in the present case, it is not relevant

whether the “real dispute” is between Portugal and Indonesia rather

than Portugal and Australia. Portugal has, rightly or wrongly,

formulated complaints of fact and law against Australia which the

latter has denied. By virtue of this denial, there is a legal dispute.

The Court then considers Australia’s principal objection, to the

effect that Portugal’s Application would require the Court to

determine the rights and obligations of Indonesia. Australia contends

that the jurisdiction conferred upon the Court by the Parties’

declarations under Article 36, paragraph 2, of the Statute would not

enable the Court to act if, in order to do so, the Court were required to

rule on the lawfulness of Indonesia’s entry into and continuing

presence in East Timor, on the validity of the 1989 Treaty between

Australia and Indonesia, or on the rights and obligations of Indonesia

under that Treaty, even if the Court did not have to determine its

validity. In support of its argument, it refers to the Court’s Judgment

in the case of the Monetary Gold Removed

280 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

from Rome in 1943. Portugal agrees that if its Application required

the Court to decide any of these questions, the Court could not

entertain it. The Parties disagree, however, as to whether the Court is

required to decide any of these questions in order to resolve the

dispute referred to it.

Portugal contends first that its Application is concerned

exclusively with the objective conduct of Australia, which consists in

having negotiated, concluded and initiated performance of the 1989

Treaty with Indonesia, and that this question is perfectly separable

from any question relating to the lawfulness of the conduct of

Indonesia.

Having carefully considered the argument advanced by

Portugal which seeks to separate Australia’s behaviour from that of

the Indonesia, the Court concludes that Australia’s behavior cannot be

assessed without first entering into the question why it is that

Indonesia could not lawfully have concluded the 1989 Treaty, while

Portugal allegedly could have done so; the very subject-matter of the

Court’s decision would necessarily be a determination whether,

having regard to the circumstances in which Indonesia entered and

remained in East Timor, it could or could not have acquired the

power to enter into treaties on behalf of East Timor relating to the

resources of its continental shelf. The Court could not make such a

determination in the absence of the consent of Indonesia.

The Court rejects Portugal’s additional argument that the rights

which Australia allegedly breached were rights erga omnes and that

accordingly Portugal could require it, individually, to respect them

regardless of whether or not another State had conducted itself in a

similarly unlawful manner.

In the Court’s view, Portugal’s assertion that the right of

peoples to self-determination, as it evolved from the Charter and from

United Nations practice, has an erga omnes character, is

irreproachable. The principle of self-determination of peoples has

been recognized by the United Nations Charter and in the

jurisprudence of the Court; it is one of the essential principles of

contemporary international law. However, the Court considers that

the erga omnes character of a norm and the rule of consent to

jurisdiction are two different things. Whatever the nature of the

obligations invoked, the Court could not rule on the lawfulness of the

conduct of a State when its judgment would imply an evaluation of

the lawfulness of the conduct of another State which is not a party to

the case.

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281

The Court goes on to consider another argument of Portugal

which, the Court observes, rests on the premise that the United

Nations resolutions, and in particular those of the Security Council,

can be read as imposing an obligation on States not to recognize any

authority on the part of Indonesia over East Timor and, where the

latter is concerned, to deal only with Portugal. Portugal maintains that

those resolutions would constitute “givens” on the content of which

the <tourt would not have to decide de novo.

The Court takes note of the fact that, for the two Parties, the

Territory of East Timor remains a non-self governing territory and its

people has the right to self-determination, and that the express

reference to Portugal as the “administering Power” in a number of the

above-mentioned resolutions is not at issue between them.

The Court finds, however, that it cannot be inferred from the sole fact

that a number of resolutions of the General Assembly and the

Security Council refer to Portugal as the administering Power of East

Timor that they intended to establish an obligation on third States to

treat exclusively with Portugal as regards the continental shelf of East

Timor. Without prejudice to the question whether the resolutions

under discussion could be binding in nature, the Court considers as a

result that they cannot be regarded as “givens” which constitute a

sufficient basis for determining the dispute between the Parties.

It follows from this that the Court would necessarily have to

rule upon the lawfulness of Indonesia’s conduct as a prerequisite for

deciding on Portugal’s contention that Australia violated its obligation

to respect Portugal’s status as administering Power, East Timor’s

status as a non-self governing territory and the right of the people of

the Territory to self-determination and to permanent sovereignty over

its wealth and natural resources. Indonesia’s rights and obligations

would thus constitute the very subject matter of such a judgment

made in the absence of that State’s consent. Such a judgment would

run directly counter to the “well- established principle of international

law embodied in the Court’s Statute, namely, that the Court can only

exercise jurisdiction over a State with its consent.” (Monetary Gold

Removed from Rome in 1943,1.CJ. Reports 1954, p. 32).

The Court accordingly finds that it is not required to consider Australia’s

other objections and that it cannot rule on Portugal’s claims on the merits,

whatever the importance of the questions raised by those claims and of the rules of

international law which they bring into play.

282 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The Court recalls in any event that it has taken note in the Judgment that, for

the two Parties, the Territory of East Timor remains a non-self governing territory

and its people has the right to self-determination.

Provisional measures.

Article 41

1. The Court shall have the power to indicate, if it considers

that circumstances so require, any provisional measures which ought

to be taken to preserve the respective rights of either party.

2. Pending the final decision, notice of the measures

suggested shall forthwith be given to the parties and to the Security

Council

NICARAGUA V. UNITED STATES ICJ 1984

(Summary)

The Court finds that the circumstances require that it should

indicate provisional measures, as provided by Article 41 of the

Statute, in order to preserve the rights claimed. It emphasizes that its

decision in no way prejudges the question of its jurisdiction to deal

with the merits of the case and leaves unaffected the right of the

Government of the United States and of the Government of Nicaragua

to submit arguments in respect of such jurisdiction or such merits.

For these reasons, the Court gives the decision of which the

complete text is reproduced below:

OPERATIVE PART OF THE ORDER

THE COURT,

A. Unanimously,

Rejects the request made by the United States of America that

the proceedings on the Application filed by the Republic of Nicaragua

on April 9,1984, and on the request filed the same day by the

Republic of Nicaragua for the indication of provisional measures, be

terminated by the removal of the case from the list;

B. pending its final decision in the proceedings instituted on

9 April 1984 by the Republic of Nicaragua against the United States

of America, the following provisional measures:

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283

1. Unanimously,

The United States of America should immediately cease

and refrain from any action restricting, blocking or endangering

access to or from Nicaraguan ports, and, in particular, the

laying of mines;

2. By fourteen votes to one,

The right to sovereignty and to political independence

possessed by the Republic of Nicaragua, like any other State of

the region or of the world, should be fully respected and should

not in any way be jeopardized by any military and paramilitary

activities which are prohibited by the principles of international

law, in particular the principle that States should refrain in their

international relations from the threat or use of force against the

territorial integrity or the political independence of any State,

and the principle concerning the duty not to intervene in

matters within the domestic jurisdiction of a State, principles

embodied in the United Nations Charter and the Charter of the

Organization of American States.

3. Unanimously,

The Governments of the United States of America and

the Republic of Nicaragua should each of them ensure that no

action of any kind is taken which might aggravate or extend the

dispute submitted to the Court .

4. Unanimously,

The Governments of the United States of America and

the Republic of Nicaragua should each of them ensure that no

action is taken which might prejudice the rights of the other

Party in respect of the carrying out of whatever decision the

Court may render in the case.

C. Unanimously,

Decides further that, until the Court delivers its final judgment

in the present case, it will keep the matters covered by this Order

continuously under review.

D. Unanimously,

Decides that the written proceedings shall first be addressed to

the questions of the jurisdiction of the Court to entertain the dispute

and of the admissibility of the Application;

284 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

And reserves the fixing of the time-limits for the said written

proceedings, and the subsequent procedure, for further decision.

CASE CONCERNING LEGALITY OF USE OF FORCE

Yugoslavia v. United States of America, [1999] ICJ Rep.

[This case was a request by the Federal Republic of

Yugoslavia against the NATO states (Belgium, Canada, France,

Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and

United States) in relation to the bombings being carried out by the

NA 8:00 AM forces]

15. Whereas, the Court is deeply concerned with the human

tragedy, the loss of life, and the enormous suffering in Kosovo which

form the background of the present dispute, and with the continuing

loss of life and human suffering in all parts of Yugoslavia;

16. Whereas, the Court is profoundly concerned with the use

of force in Yugoslavia; whereas under the present circumstances such

use raises very serious issues of international law;

17. Whereas, the Court is mindful of the purposes and

principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter

and the Statute of the Court;

18. Whereas, the Court deems it necessary to emphasize that

all parties appearing before it must act in conformity with their

obligations under the United Nations Charter and other rules of

international law, including humanitarian law;

* * *

19. Whereas, the Court, under its Statute, does not

automatically have jurisdiction over legal disputes between States

parties to that Statute or between other States to whom access to the

Court has been granted; whereas the Court has repeatedly stated “that

one of the fundamental principles of its Statute is that it cannot decide

a dispute between States without the consent of those States to its

jurisdiction” (East Timor, Judgment, I.CJ. Reports 1995, p. 101,

para. 26); and whereas, the Court can therefore exercise jurisdiction

only between States parties to a dispute who not only have access to

the Court but also have accepted the jurisdiction of the Court, either

in general form or for the individual dispute concerned;

20. Whereas, on a request for provisional measures the Court

need not, before deciding whether or not to indicate them,

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PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES

finally satisfy itself that it has jurisdiction on the merits of the case,

yet it ought not to indicate such measures unless the provisions

invoked by the applicant appear,prima facie, to afford a basis on

which the jurisdiction of the Court might be established;

21. Whereas, in its Application Yugoslavia claims, in the

first place, to found the jurisdiction of the Court upon Article IX of

the Genocide Convention, which provides:

“Disputes between the Contracting Parties relating to the

interpretation, application or fulfillment of the present

Convention, including those relating to the responsibility of a

State for genocide or for any of the other acts enumerated in

Article III, shall be submitted to the International Court of

Justice at the request of any of the parties to the dispute”;

Whereas, it is not disputed that both Yugoslavia and the

United States are parties to the Genocide Convention; but

whereas, when the United States ratified the Convention on 25

November 1988, it made the following reservation: “That with

reference to Article IX of the Convention, before any dispute to

which the United States is a party may be submitted to the

jurisdiction of the International Court of Justice under this

Article, the specific consent of the United States is required in

each case”;

22. Whereas, the United States contends that “[its] reservation [to Article IX] is clear and unambiguous”; that “[t]he United

States has not given the specific consent [that reservation] requires

[and]... will not do so”; and that Article IX of the Convention cannot

in consequence found the jurisdiction of the Court in this case, even

prima facie; whereas, the United States also observed that

reservations to the Genocide Convention are generally permitted; that

its reservation to Article IX is not contrary to the Convention’s object

and purpose; and that, “[s]ince ... Yugoslavia did not object to the ...

reservation, [it] is bound by it”; and whereas the United States further

contends that there is no “legally sufficient ... connection between the

charges against the United States contained in the Application and

[the] supposed jurisdictional basis under the Genocide Convention”;

and whereas the United States further asserts that Yugoslavia has

failed to make any credible allegation of violation of the Genocide

Convention, by failing to demonstrate the existence of the specific

intent required by the Convention to “destroy, in whole or in part, a

national, ethnical, racial or religious group, as such,” which intent

could not be inferred from the conduct of conventional military

operations against another State.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

23. Whereas, Yugoslavia disputed the United States

interpretation of the Genocide Convention, but submitted no

argument concerning the United States reservation to Article IX of

the Convention;

24. Whereas, the Genocide Convention does not prohibit

reservations; whereas, Yugoslavia did not object to the United States

reservation to Article IX; and whereas, the said reservation had the

effect of excluding that Article from the provisions of the Convention

in force between the Parties;

25. Whereas, in consequence Article IX of the Genocide

Convention cannot found the jurisdiction of the Court to entertain a

dispute between Yugoslavia and the United States alleged to fall

within its provisions; and whereas, that Article manifestly does not

constitute a basis of jurisdiction in the present case, even prima facie;

* *

26. Whereas, in its Application Yugoslavia claims, in the

second place, to found the jurisdiction of the Court on Article 38,

paragraph 5, of the Rules of Court, which reads as follows:

“5. When the applicant State proposes to found the

jurisdiction of the Court upon a consent thereto yet to be given

or manifested by the State against which such application is

made, the application shall be transmitted to that State. It shall

not however be entered in the General List, nor any action be

taken in the proceedings, unless and until the State against

which such application is made consents to the Court’s

jurisdiction for the purposes of the case”;

27. Whereas, the United States observes that it “has not

consented to jurisdiction under Article 38, paragraph 5 [of the Rules

of Court] and will not do so”;

28. Whereas, it is quite clear that, in the absence of consent

by the United States, given pursuant to Article 38, paragraph 5, of the

Rules, the Court cannot exercise jurisdiction in the present case, even

prima facie\

* *

29. Whereas, it follows from what has been said above that

the Court manifestly lacks jurisdiction to entertain Yugoslavia’s

Application; whereas it cannot therefore indicate any provisional

measure whatsoever in order to protect the rights invoked therein;

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287

and whereas, within a system of consensual jurisdiction, to maintain

on the General List a case upon which it appears certain that the Court

will not be able to adjudicate on the merits would most assuredly not

contribute to the sound administration of justice;

* *

30. Whereas, there is a fundamental distinction between the

question of the acceptance by a State of the Court’s jurisdiction and

the compatibility of particular acts with international law; the former

requires consent; the latter question can only be reached when the

Court deals with the merits after having established its jurisdiction

and having heard full legal arguments by both parties;

31. Whereas, whether or not States accept the jurisdiction of

the Court, they remain in any event responsible for acts attributable to

them that violate international law, including humanitarian law;

whereas any disputes relating to the legality of such acts are required

to be resolved by peaceful means, the choice of which, pursuant to

Article 33 of the Charter, is left to the parties;

32. Whereas, in this context the parties should take care not

to aggravate or extend the dispute;

33. Whereas, when such a dispute gives rise to a threat to the

peace, breach of the peace or act of aggression, the Security Council

has special responsibilities under Chapter VII of the Charter;

* *

34. For these reasons,

The Court,

(1) By twelve votes to three,

Rejects the request for the indication of provisional measures

submitted by the Federal Republic of Yugoslavia on 29 April 1999;

Intervention.

Article 62.

1. Should a state consider that it has an interest of a legal

nature which may be affected by the decision in the case, it may

submit a request to the Court to be permitted to intervene.

2. It shall be for the Court to decide upon this request.

288 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Article 63.

1. Whenever the construction of a convention to which

states other than those concerned in the case are parties is in question,

the Registrar shall notify all such states forthwith.

2. Every state so notified has the right to intervene in the

proceedings; but if it uses this right, the construction given by the

judgment will be equally binding upon it.

EL SALVADOR V. HONDURAS

Nicaragua Intervention [1992] ICJ Rep.

In its Application for permission to intervene, filed on 17

November 1989, Nicaragua stated that the Application was made by

virtue of Article 36, paragraph 1, and Article 62 of the Statute.

***** The Chamber observes that as the Court has made

clear in previous cases, in order to obtain permission to intervene

under Article 62 of the Statute, a State has to show an interest of a

legal nature which may be affected by the Court’s decision in the case

...

(b) Object of the intervention

The Chamber turns to the question of the object of Nicaragua’s

Application for permission to intervene in the case. A statement of

the “precise object of the intervention” is required by Article 81,

paragraph 2(b), of the Rules of Court.

Nicaragua’s indication, in its Application for permission to

intervene, of the object of its intervention in the present case, is as

follows:

“The intervention for which permission is requested has

the following objects:

“First, generally to protect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca and the adjacent

maritime areas by all legal means available.

“Secondly, to intervene in the proceedings in order to

inform the Court of the nature of the legal rights of Nicaragua

which are in issue in the dispute. This form of inter

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289

vention would have the conservative purpose of seeking to

ensure that the determination of the Chamber did not trench

upon the legal rights and interests of the Republic of Nicaragua.”

* * * * *

So far as the object of Nicaragua’s intervention is “to inform

the Court of the nature of the legal rights of Nicaragua which are in

issue in the dispute,” it cannot be said that this object is not a proper

one: it seems indeed to accord with the function of intervention. ...

Secondly, it does not seem to the Chamber that for a State to seek by

intervention “to protect its claims by all legal means” necessarily

involves the inclusion in such means of “that of seeking a favourable

judicial pronouncement” on its own claims. The “legal means

available” must be those afforded by the institution of intervention for

the protection of a third State’s legal interests. So understood, that

object cannot be regarded as improper.

* * * * *

The Chamber has now further to consider the argument of El

Salvador that for Nicaragua to intervene it must in addition show a

“valid link of jurisdiction” between Nicaragua and the Parties. In its

Application, Nicaragua does not assert the existence of any basis of

jurisdiction other than the Statute itself, and expresses the view that

Article 62 does not require a separate title of jurisdiction.

The question is whether the existence of a valid link of

jurisdiction with the parties to the case — in the sense of a basis of

jurisdiction which could be invoked, by a State seeking to intervene,

in order to institute proceedings against either or both of the parties —

is an essential condition for the granting of permission to intervene

under Article 62 of the Statute. In order to decide the point, the

Chamber must consider the general principle of consensual

jurisdiction in its relation with the institution of intervention.

There can be no doubt of the importance of this general

principle. The pattern of international judicial settlement under the

Statute is that two or more States agree that the Court shall hear and

determine a particular dispute. Such agreement may be given ad hoc,

by Special Agreement or otherwise, or may result from the

invocation, in relation to the particular dispute, of a compromissory

clause of a treaty or of the mechanism of Article 36, paragraph 2, of

the Court’s Statute. Those States are the “parties” to the proceedings,

and are bound by the Court’s eventual decision

290 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

because they have agreed to confer jurisdiction on the Court to decide

the case, the decision of the Court having binding force as provided

for in Article 59 of the Statute. Normally therefore, no other State

may involve itself in the proceedings without the consent of the

original parties. Nevertheless, procedures for a “third” State to

intervene in a case are provided in Articles 62 and 63 of the Court’s

Statute. The competence of the Court in this matter of intervention is

not, like its competence to hear and determine the dispute referred to

it, derived from the consent of the parties to the case, but from the

consent given by them, in becoming parties to the Court’s Statute, to

the Court’s exercise of its powers conferred by the Statute. Thus, the

Court has the competence to permit an intervention even though it be

opposed by one or both of the parties to the case. The nature of the

competence thus created by Article 62 of the Statute is definable by

reference to the object and purpose of intervention, as this appears

from Article 62 of the Statute.

Intervention under Article 62 of the Statute is for the purpose of

protecting a State’s “interest of a legal nature” that might be affected

by a decision in an existing case already established between other

States, namely the parties to the case. It is not intended to enable a

third State to tack on a new case, to become a new party, and so have

its own claims adjudicated by the Court. Intervention cannot have

been intended to be employed as a substitute for contentious

proceedings. Acceptance of the Statute by a State does not of itself

create jurisdiction to entertain a particular case: the specific consent

of the parties is necessary for that. If an intervener were held to

become a party to a case merely as a consequence of being permitted

to intervene in it, this would be a very considerable departure from

the principle of consensual jurisdiction. It is therefore clear that a

State, which is allowed to intervene in a case, does not, by reason

only of being an intervener, become also a party to the case.

It thus follows from the juridical nature and from the purposes

of intervention that the existence of a valid link of jurisdiction

between the would-be intervener and the parties is not a requirement

for the success of the application. On the contrary, the procedure of

intervention is to ensure that a State with possibly affected interests

may be permitted to intervene even though there is no jurisdictional

link and it therefore cannot become a party. The Chamber therefore

concludes that the absence of a jurisdictional link between Nicaragua

and the Parties to this case is no bar to permission being given for

intervention.

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PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES

IV. Procedural Rights of State permitted to intervene

Since this is the first case in the history of the two Courts in

which a State will have been accorded permission to intervene under

Article 62 of the Statute, it appears appropriate to give some

indication of the extent of the procedural rights acquired by the

intervening State as a result of that permission. In the first place, as

has been explained above, the intervening State does not become

party to the proceedings, and does not acquire the rights, or become

subject to the obligations, which attach to the status of a party, under

the Statute and Rules of Court, or the general principles of procedural

law. Nicaragua, as an intervener, has of course a right to be heard by

the Chamber. That right is regulated by Article 85 of the Rules of

Court, which provides for submission of a written statement, and

participation in the hearings.

The scope of the intervention in this particular case, in relation

to the scope of the case as a whole, necessarily involves limitations of

the right of the intervener to be heard. An initial limitation is that it is

not for the intervener to address argument to the Chamber on the

interpretation of the Special Agreement concluded between the Parties

on 24 May 1986, because the Special Agreement is, for Nicaragua,

res inter alios acta; and Nicaragua has disclaimed any intention of

involving itself in the dispute over the land boundary. The Chamber

then summarizes the aspects of the case in respect of which Nicaragua

has shown the existence of an interest of a legal nature and those in

respect of which it has not, with the consequent limitations on the

scope of the intervention permitted.

Obligation to comply with decisions.

Article 59 (ICJ Statute)

The decision of the Court has no binding force except between

the parties and in respect of that particular case.

Article 60

The judgment is final and without appeal. In the event of

dispute as to the meaning or scope of the judgment, the Court shall

construe it upon the request of any party.

Article 61

1. An application for revision of a judgment may be made

only when it is based upon the discovery of some fact of such a nature

as to be a decisive factor, which fact was, when the

292 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

judgment was given, unknown to the Court and also to the party

claiming revision, always provided that such ignorance was not due

to negligence.

2. The proceedings for revision shall be opened by a

judgment of the Court expressly recording the existence of the new

fact, recognizing that it has such a character as to lay the case open to

revision, and declaring the application admissible on this ground.

3. The Court may require previous compliance with the

terms of the judgment before it admits proceedings in revision.

4. The application for revision must be made at latest

within six months of the discovery of the new fact.

5. No application for revision may be made after the lapse

of ten years from the date of the judgment.

Article 94 (UN Charter)

1. Each Member of the United Nations undertakes to

comply with the decision of the International Court of Justice in any

case to which it is a party.

2. If any party to a case fails to perform the obligations

incumbent upon it under a judgment rendered by the Court, the other

party may have recourse to the Security Council, which may, if it

deems necessary, make recommendations or decide upon measures to

be taken to give to the judgment.

ICJ judgments are binding on the parties (Art. 59) and are deemed “final

and without appeal.” (Art. 60).

Enforcement is governed by Article 94 of the UN Charter. Member states

must comply with the judgment. If a party does not comply, the aggrieved party

may appeal to the UN Security Council “which may, if it deems necessary, make

recommendations or decide upon measures to be taken to give effect to the

judgment.” This may give rise to enforcement measures, which, however, is

subject to the veto powers of the permanent members. But the winning state might

make use of alternative methods of enforcement such as diplomatic or economic

pressure.

Advisory jurisdiction.

Under Article 65 of the Statute, the advisory jurisdiction may “in

accordance with the Charter of the United Nations.” Article 96 of the

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293

UN Charter empowers the General Assembly and the Security Council to make

requests for advisory opinion. At the same time the General Assembly may

authorize other UN agencies to seek advisory opinion. The provisions of the ICJ

Statute say:

Article 65.

1. The Court may give an advisory opinion on any legal

question at the request of whatever body may be authorized by or in

accordance with the Charter of the United Nations to make such a

request.

2. Questions upon which the advisory opinion of the Court

is asked shall be laid before the Court by means of a written request

containing an exact statement of the question upon which an opinion

is required, and accompanied by all documents likely to throw light

upon the question.

Article 66.

1. The Registrar shall forthwith give notice of the request

for an advisory opinion to all states entitled to appear before the

Court.

2. The Registrar shall also, by means of a special and direct

communication, notify any state entitled to appear before the Court or

international organization considered by the Court, or, should it not be

sitting, by the President, as likely to be able to furnish information on

the question, that the Court will be prepared to receive, within a time

limit to be fixed by the President, written statements, or to hear, at a

public sitting to be held for the purpose, oral statements relating to the

question.

3. Should any such state entitled to appear before the Court

have failed to receive the special communication referred to in

paragraph 2 of this Article, such state may express a desire to submit

a written statement or to be heard; and the Court will decide.

4. States and organizations having presented written or oral

statements or both shall be permitted to comment on the statements

made by other states or organizations in the form, to the extent, and

within the time limits which the Court, or, should it not be sitting, the

President, shall decide in each particular case. Accordingly, the

Registrar shall in due time communicate any such written statements

to states and organizations having submitted similar statements.

294 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

For its part the UN Charter says:

Article 96.

1. The General Assembly or the Security Council may request

the International Court of Justice to give an advisory opinion on any legal

question.

2. Other organs of the United Nations and specialized agencies,

which may at any time be so authorized by the General Assembly, may also

request advisory opinions of the Court on legal questions arising within the

scope of their activities.

By definition advisory opinions are non-binding. Acceptance or nonacceptance of the advisory opinion is determined by the internal law of the

institution.

Other more active International Courts.

The more active are the Court of Justice of the European Communities, the

European Court of Human Rights, the Benelux Court of Justice and the InterAmerican Court of Human Rights. The International Criminal Court entered into

force only in 2002.

Chapter 14

THE USE OF FORCE SHORT OF WAR

The Use of Force.

The general principle is that international law recognizes the autonomy of

individual states and their right to freedom from coercion and to the integrity of

their territory. The basic principle is found in Article 2(4) of the UN Charter: “All

Members shall refrain in their international relations from the threat or use of force

against the territorial integrity or political independence of any state, or in any

other manner inconsistent with the Purposes of the United Nations.”

It is noteworthy that the text does not use the word “war.”

The word war is a technical term which does not include some uses of force.

The prohibition in the Charter therefore broader than the prohibition of

war. Similarly, it should be noted that the text does not merely prohibit the

use of force “against the territorial integrity or political independence of any

state.” The text broadly prohibits the use of force “in any other manner

inconsistent with the Purposes of the United Nations.” It does yield the

meaning of a very broad prohibition of the use of force because the

purposes of the United Nations, as found in Article 1 of the Charter, go

beyond merely the protection of the territorial integrity and political

independence of states.

It will be recalled that the Corfu Channel case

dealt with British warships

which had been struck by mines while exercising the right of innocent passage in

Albanian territory. Britain sent additional warships to sweep the minefields within

Albanian territory. The Court used language in support of a broad prohibition of

force:

'(1949) ICJ Rep.

295

296 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The United Kingdom has stated that its object was to secure the mines as

quickly as possible for fear lest they should be taken away by the authors of the

mine laying or by the Albanian authorities: this was presented either as a new and

special application of the theory of intervention, by means of which the

intervening State was acting to facilitate the task of the international tribunal, or as

a method of selfprotection or self-help. The Court cannot accept these lines of

defence. It can only regard the alleged right of intervention as the manifestation of

a policy of force which cannot find a place in international law. As regards the

notion of self-help, the Court is also unable to accept it: between independent

States the respect for territorial sovereignty is an essential foundation for

international relations....

The prohibition of the use of force, however, is not just conventional law. It

is customary international law. In Nicaragua v. US,2

the Court made this

pronouncement:

The Court finds that both Parties take the view that the

principles as to the use of force incorporated in the United Nations

Charter correspond, in essentials, to those found in customary

international law. They therefore accept a treaty-law obligation to

refrain in their international relations from the threat or use of force

against the territorial integrity or political independence of any State,

or in any other manner inconsistent with the purposes of the United

Nations (Art. 2, para. 4, of the Charter). The Court has however to be

satisfied that there exists in customary law an opinio juris as to the

binding character of such abstention. It considers that this opinio juris

may be deduced from, inter alia, the attitude of the Parties and of

States towards certain General Assembly resolutions, and particularly

resolution 2625 (XXV) entitled “Declaration on Principles of

International Law concerning Friendly Relations and Co-operation

among States in Accordance with the Charter of the United Nations.”

Consent to such resolutions is one of the forms of expression of an

opinio juris with regard to the principle of nonuse of force, regarded

as a principle of customary international law, independently of the

provisions, especially those of an institutional kind, to which it is

subject on the treaty-law plane of the Charter.

( 1986) ICJ Rep.

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297

A separate opinion was filed by Judge Sette-Camara:

Judge Sette-Camara fully concurs with the Judgment because

he firmly believes that “the non-use of force as well as nonintervention — the latter as a corollary of equality of States and selfdetermination — are not only cardinal principles of customary

international law but could in addition be recognized as peremptory

rules of customary international law which impose obligations on all

States.”

The Threat of Force.

The Charter prohibits not just the use of force but also the threat of force.

The most typical form of this threat is the ultimatum in which the State to which it

is addressed is given a time-limit within which to accept the demands made upon it

and is told that, if it rejects the demands, war will be declared on it or certain

coercive measures such as a naval blockade, bombardment, or occupation of a

given territory, will be taken. However, the threat to use force is not always made

in so crude and open a form. There are sometimes veiled threats that may be very

effective, but are difficult to detect.

Threat of force was discussed by the ICJ in an advisory opinion on the

Legality of the Threat or Use of Nuclear Weapons3

in the light of the provisions of

the Charter:

In Article 2, paragraph 4, of the Charter the use of force against

the territorial integrity or political independence of another State or in

any other manner inconsistent with the purposes of the United

Nations is prohibited.

This prohibition of the use of force is to be considered in the

light of other relevant provisions of the Charter. In Article 51, the

Charter recognizes the inherent right of individual or collective selfdefence if an armed attack occurs. A further lawful use of force is

envisaged in Article 42, whereby the Security Council may take

military enforcement measures in conformity with Chapter VII of the

Charter.

These provisions do not refer to specific weapons. They apply

to any use of force, regardless of the weapons employed.

(1996) ICJ Rep.

298 INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The Charter neither expressly prohibits, nor permits, the use of any

specific weapon, including nuclear weapons.

The entitlement to resort to self-defence under Article 51 is

subject to the conditions of necessity and proportionality. As the

Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of

America) (I.CJ. Reports 1986,p. 94,para. 176): “there is a specific

rule whereby self-defence would warrant only measures which are

proportional to the armed attack and necessary to respond to it, a rule

well-established in customary international law.”

The proportionality principle may thus not in itself exclude the

use of nuclear weapons in self-defence in all circumstances.

But at the same time, a use of force that is proportionate under the

law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in

particular the principles and rules of humanitarian law. And the Court

notes that the very nature of all nuclear weapons and the profound

risks associated therewith are further considerations to be borne in

mind by States believing they can exercise a nuclear response in selfdefence in accordance with the requirements of proportionality.

In order to lessen or eliminate the risk of unlawful attack,

States sometimes signal that they possess certain weapons to use in

self-defence against any State violating their territorial integrity or

political independence. Whether a signaled intention to use force if

certain events occur is or is not a “threat” within Article 2, paragraph

4, of the Charter depends upon various factors. The notions of

“threat” and “use” of force under Article 2, paragraph 4, of the

Charter stand together in the sense that if the use of force itself in a

given case is illegal — for whatever reason — the threat to use such

force will likewise be illegal. In short, if it is to be lawful, the

declared readiness of a State to use force must be a use of force that is

in conformity with the Charter. For the rest, no State — whether or

not it defended the policy of deterrence — suggested to the Court that

it would be lawful to threaten to use force if the use of force

contemplated would be illegal.

Individual and Collective Self-defense.

The general prohibition of the use of force does not preclude the

right to self-defense. This is the subject of Article 51:

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299

Nothing in the present Charter shall impair the inherent right of

individual or collective self-defence if an armed attack occurs against

a Member of the United Nations, until the Security Council has taken

measures necessary to maintain international peace and security.

Measures taken by Members in the exercise of this right of selfdefence shall be immediately reported to the Security Council and

shall not in any way affect the authority and responsibility of the

Security Council under the present Charter to take at any time such

action as it deems necessary in order to maintain or restore

international peace and security.

The subject was discussed at some length in Nicaragua v. USA*